There was a short, but significant, drama in a Hartford, Connecticut, courtroom earlier this week. It lasted all of 25 minutes. It was a trial in which a federal jury heard evidence about the value of Malik Jones's life. The jury heard from one witness, his daughter, now sixteen. She was three years old when the East Haven police gunned her daddy down. The jury decided Mr. Jones's life was worth $900,000. How did it do that?
Don't ask the lawyer who defended the city of East Haven and the man who killed Mr. Jones, Hugh Keefe. He's still sizzling after being struck by lightning. This is the second time a jury gave Mr. Jones's estate money on Mr. Keefe's watch. If Mr. Keefe has his way, there will be a third trial.
Malik Jones was 21-years-old when he was shot to death by Robert Flodquist. He had the misfortune of being a young black man in a town not known to roll out the welcome mat to people of color. The night he was killed, the police claimed he had placed their lives at risk. In 2003, a federal jury rejected that claim, concluding, in effect, that Mr. Jones had been executed for the crime of driving while black. That jury awarded Mr. Jones $2.5 million. An appellate court later took that money away, and ordered a new trial on damages alone.
Mr. Jones had a luckless life. Dead at 21, he had been arrested 34 times, according to Mr. Keefe, for such crimes as sale of narcotics and weapons' possession. He took the edge off by using PCP. I recall meeting him once; he had a haunted, and hunted, look.
The first jury to hear about Mr. Jones decided his life wasn't worth a dime, and it awarded his estate nothing for the loss of his life. But the jury was angry about the cloud of racism that hung over East Haven, and it awarded $2.5 million in punitive damages against the City of East Haven.
The trouble with that verdict was that punitive damages cannot be awarded against a city. That has been the law in the United States for a long, long time. That jury should never have been permitted to consider whether to award punitive damages against the City. It wasn't even a close call. Every lawyer who tries civil rights cases knows that, and the lawyers in this case should have known it at the time of the first trial. Judge Alvin Thompson should have known it too. I recall hearing about the verdict while on vacation seven years ago. I was so shocked that punitive damages had been awarded against a city, I started making phone calls. "Had the law recently changed?," I asked.
Of course, it had not changed. The trial was a failure of the adversarial system: when the umpire and coaches for the opposing teams don't know the rules, the game just isn't baseball. A new trial was inevitable.
At the new trial, the jury was instructed that Mr. Jones was killed without justification. This trial was simply to be about damages, and was dedicated to the question of how much Mr. Jones's life was worth. This time around, a jury was not permitted to consider whether to award punitive damages against the City of East Haven.
Enter Mr. Jones's new lawyer, David Rosen. (The lawyer who tried the case on behalf of Mr. Jones the first time, Joseph Moniz, has since been disbarred for legal troubles of his own.) Mr. Rosen tried the 25-minute trial. But did he outsmart himself? Mr. Rosen is a quirky genius, a graduate or Harvard and the Yale Law School. He thinks long and hard about things, but has the difficult sort of demeanor that makes hello feel like something far less than a welcoming.
This business of placing a value on a dead man's life is tricky. Lawyers speak of opening evidentiary doors. Kill a bank president, and a witness can testify about his annual income, adjusted for inflation. A table can be introduced estimating how many more years the president would have been expected to live. But if you put this sort of evidence on, a jury gets to hear all sorts of things, such as the fact that man was unlikely ever to earn another dollar as a bank president because he was on his way to prison. Lawyers can also present evidence that the dead man lost the ability to enjoy life, a sublime piece of legal chicanery that permits a lawyer to play upon a jury's heart strings. But this, too, carries risks: What is the value of all those missed sunrises if the dead man would have seen them through prison bars, or if the glory of it all was lost on a drug addled brain? You select your evidence carefully in the game of trial.
So credit Mr. Rosen with characteristic brilliance for the brevity of his case. He put on a lovely young woman who was three years old at the time of her father's death. She was well spoken and articulate, according to press accounts. She wears a locket containing a picture of the man she never knew around her neck. The jury was asked to award the estate of Malik Jones money for the time he never got to spend with his daughter and other family members. It gave $375,000 for that sum. We wll never know how it arrived at that sum. Neither will we know how it decided the loss of Mr. Jones's life was worth $525,000. It wasn't a sum reflecting his lost earning potential. The amount reflects his loss of the wonder of it all.
Mr. Rosen's bold tactical gamble paid off. The less the jury knew about Mr. Jones, the more his life would appear to be worth. Put a witness on the stand who never really knew the dead man and therefore could not on cross-examination be asked about the bad news in Mr. Jones's life. Make that witness a child, and invite the jury to consider all the bedtime stories that never got told. Never mind that those stories might never have been told. Illusion is destiny in a wrongful death case: every man is the king of the sand castle his lawyer builds.
The Malik Jones case now heads back to the appellate court. Mr. Rosen will argue that the verdict was supported by the evidence. Mr. Jones should not have been killed. The value of a life should not be discounted just because the dead man was a man of many sorrows. Mr. Keefe will be argue that the jury was sold a fantasy, its heart strings plucked to the breaking point by the emotional testimony of a child who only knew she missed her daddy. Because Mr. Keefe was not permitted by the judge to tell the jury about Mr. Jones's criminal history, he was unable to argue that the young woman might be just as heartbroken had Mr. Jones lived his life behind bars.
The administratrix of Mr. Jones's estate, his mother Emma Jones, no doubt sat in the courtroom dressed in her now customary white linen habit, a martyr for his lost cause. She wasn't wearing white when he died; that came later, when Mr. Jones's death became a calling. This was lovely theater.
Mr. Jones was unlucky when alive. His bad luck continues. In the first trial, a jury concluded his life wasn't worth a dime, but it awarded his estate $2.5 million. Because his lawyer, the lawyer for the City, and the judge ignored a basic legal principle, that verdict was erased from the books. At his new trial, his family hired a brilliant lawyer who regarded trial as a game of chess. Mr. Rosen out-thought his opponent, and won a stunning tactical victory, slipping all sorts of warm and fuzzy feelings before the jury in the form of the most unlikely Trojan horse of all, a daughter with few memories of the man whose life the jury was to value. But these new-found riches will most likely prove as illusory as the millions awarded in the first trial. Judge Thompson just wasn't thinking when he permitted a jury to hear just the good news about Mr. Jones; the tires on Mr. Jones's car were threadbare. My hunch is that Mr. Rosen outsmarted himself.
I've got to believe Mr. Keefe's blood pressure rises when he hears the name Malik Jones. Twice now, the young man's ghost has mocked Mr. Keefe, drawing money from the lips of perfect strangers, first in violation of the law, and now in apparent violation of common sense. For all his fiery courthouse bluster, Mr. Keefe's been shooting blanks at Malik's ghost. It's too bad for Mr. Jones that police officers were armed with something more lethal than blanks. He shouldn't have been killed by East Haven's finest.
Emma Jones may never seen a dime for the killing of her son. But at the rate this case is going, the City will still spend millions defending this ill-starred action. Maybe the City should just settle up now, and cut its losses. This is a case no one seems to get right, no matter how many times it is tried.