PROVIDENCE -- The lawyers who represented the mother of slain police Sgt. Cornel Young Jr. never intended to mislead the court and they don't deserve sanctions, attorneys told U.S. District Judge Mary M. Lisi yesterday.
Lisi ordered O.J. Simpson lawyer Barry C. Scheck, his New York associate Nick Brustin, and Rhode Island lawyer Robert B. Mann to appear before her yesterday to "show cause" why they should not be sanctioned. Lisi has said the lawyers made false statements in a memo they filed Oct. 16 while representing Leisa E. Young in her civil-rights case against the city.
Yesterday, after hearing nearly three hours of arguments in a packed courtroom, Lisi said she intends to issue a written decision as soon as she can.
The hearing began with Lisi agreeing that she made a mistake in her show-cause order, by stating that the lawyers violated a federal rule of civil procedure before giving them a chance to respond. She said she would file an amended order stating only that it "appears" the lawyers violated Rule 11, which requires that "allegations or other factual contentions have evidentiary support."
"That takes care of the procedural issue," Lisi said.
"I'm not sure of that," replied Joseph A. Kelly, a lawyer representing Scheck and Brustin.
Lisi said the alternative would be for her to rip up the old show-cause order and call the lawyers back to court another day -- after she's issued a new order. But she said that would "simply prolong the agony for all concerned, and I don't wish to do that."
The lawyers decided to move ahead without a new order. But Max Wistow, a lawyer representing Mann, took note of the judge's error later in the day while arguing that the lawyers, too, had simply made a mistake.
"Your honor graciously acknowledged the show-cause order was procedurally defective," Wistow said. "Even elevation to the federal bench does not exempt us from human frailties."
In January 2000, Sgt. Young drew his gun while off duty outside Fidas restaurant and was shot by two on-duty police officers who mistook him for a suspect. Leisa Young sued the city and police supervisors, but Lisi ended up dismissing all of her claims.
The threat of sanctions stems from a dispute over a diagram of the shooting scene. At trial, both sides agreed to "stipulate" that a car was in a different location than indicated in the diagram. Young's lawyers asked to back out of the stipulation, saying testimony and photos showed the diagram was correct after all. They filed a memo stating, in part, that Young "was informed by the court she had to agree to defendant's stipulation." Also, the memo said Young "was instructed she had to stipulate."
Lisi took issue with those two statements, calling them "patent misrepresentations" and saying she never told anyone they had to agree to the stipulation. Because of the memo, she tossed Scheck and Brustin off the case.
Yesterday, Lisi said those two statements "gild the lily."
Wistow said, "I submit that gilding the lily is what lawyers do, within certain bounds. They try to put facts in the best possible light. They are not supposed to be evenhanded, as the court is."
Lisi said, "They must not and cannot fabricate facts."
"Of course," Wistow said, "But I have to say -- with all the strength I can muster -- they did not do that."
Kelly also objected to the phrase "gild the lily," saying the judge must consider the memo as a whole. The overall thrust of the memo, he said, is that the lawyers made a mistake because of their own confusion.
But Lisi said Young's lawyers attributed that confusion in part to her actions -- by claiming the court gave Young no choice about the stipulation.
Wistow told Lisi that, "Common sense and the 1st Circuit have told us you cannot read sentences by themselves." And, he said, the judge's show-cause order left out important words from the lawyers' memo.
For example, Lisi's order included this quote from the memo: "Facing no choice but to agree to whatever stipulation defendant insisted upon . . . plaintiff signed what defendant provided." But, Wistow said, those ellipses omitted a key clause -- "and literally facing a last-minute choice" -- which would indicate the lawyers knew they had a choice about the stipulation.
Later, Lisi said, "In all fairness, after reading and rereading this memo, there were other charges I could have made. Frankly, the whole memo is replete with -- how shall I put this -- things not borne out by the facts."
Lisi zeroed in on who wrote the memo. Stephen M. Prignano, a lawyer representing Scheck and Brustin, said it was drafted by Brandon Garrett, a lawyer in the Cochran Neufeld & Scheck law firm who attended the trial.
"He was not admitted in this case," Lisi said. "Under whose direction was he working?"
At that point, Scheck began approaching the podium to speak with Prignano, prompting Lisi to say, "Mr. Scheck, sit down. Your lawyer will come and speak with you when he needs to."
Prignano said Garrett worked under all three lawyers: Scheck, Brustin and Mann. Lisi told Prignano he could only answer for Scheck and Brustin, and later, when Mann's lawyer came to the podium, she repeated the question. Wistow gave the same answer: all three lawyers supervised Garrett.
"To the best of Mr. Mann's recollection, he participated on equal footing," Wistow said. "He's not saying that to be a stand-up guy. It seems everyone participated more or less equally."
Wistow emphasized Mann's reputation in the legal community, urging the judge not to "put a terrible blemish on a wonderful career."
Wistow cited statements that Lisi made herself when Mann apologized after the memo became an issue during trial. "When I started practicing law," Lisi told Mann, according to a transcript of the conversation, "you were one of the people that all of us young lawyers looked up to, and so you and I have a long history."
Lisi went on to tell Mann, "I found that document to be completely out of character for you. I do not know your colleagues; but I simply could not, and will not, let stand that sort of a paper filed in the court."
After yesterday's hearing, Leisa Young again found herself on the courthouse steps surrounded by reporters. "What does all this have to do with the original case that I filed?" she asked. "I don't know how it gets sidetracked like this. How do two sentences out of the thousands of documents become more important?"
Sgt. Young's father, Maj. Cornel Young Sr., the city's highest-ranking black police officer, praised Wistow, saying, "I think somebody finally stood up to her [Lisi]."
Brustin said: "We are anxious to get on with the appeal in the underlying case so that we can give Mrs. Young her best opportunity to have her day in court."
Clifford R. Montiero, president of the Providence chapter of the NAACP said, "It's the cat guarding the milk." He said, "It's unfortunate Sergeant Young's civil rights have never had a chance to be brought before a fair and impartial lady justice."
The Rhode Island Coalition for Justice and Reconciliation, issued a release, saying, "Judge Lisi purposefully misconstrued the written argument over the diagram to take another antagonistic position against the plaintiffs. She made a legal molehill into a legal mountain, which gave her the justification for the dismissal of attorneys."
Dennis Langley, executive director of the Urban League of Rhode Island, asked, "How can she [Lisi] be the judge when she is the one bringing the charges? How can they get a fair trial under those conditions?"
Roger Williams University law school Prof. Andrew Horwitz said it's not unusual for judges to preside over sanctions hearings that they initiate. "From her perspective, she is protecting the integrity of the judicial system," he said.
But Horwitz noted that in her original order, Lisi stated the lawyers had violated Rule 11. "She made findings of fact without notice and without the opportunity to be heard -- which is what due process is all about," he said. "For whatever tactical reasons, no one asked her to remove herself from the case."
Horwitz, a past chairman of the Rhode Island Affiliate of the American Civil Liberties Union, also noted that Lisi refused to allow the ACLU to file a "friend of the court" brief, but yesterday she agreed to accept such a brief from the Rhode Island Bar Association. "It suggests she is only interested in hearing certain voices," Horwitz said. "Of course, the bar association held a press conference that one could interpret as a defense of her, and then their brief gets accepted."
Lisi did not respond to The Journal's written request to explain why she rejected the ACLU brief but accepted the bar association brief.
