United States v. Sutton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Defendants.
)
UNITED STATES OF AMERICA )
)
V. ) Criminal No. 21-0598 (PLF)
)
TERENCE SUTTON )
and )
ANDREW ZABAVSKY, )
)
)
)
MEMORANDUM OPINION AND ORDER
In an email to the Court and all counsel on December 7, 2022, counsel for
defendant Terence Sutton stated that Mr. Sutton plans to call Maureen O’Connell to testify at
trial on December 8, 2022. See Email from J. M. Hannon (Dec. 7, 2022). The email states that
“Ms. O’Connell is the Director [of] The Policy and Standards Branch (PSB) of the Strategic
Change Division, [which] develops and publishes Department policy and directives. The
mission of the Policy and Standards Branch is to provide members of the Department with clear
and timely direction on the Department’s policy and procedures. She will testify that MPD
General Orders are policy statements and not law.” Id.
The government raised an objection to Ms. O’Connell’s testimony in open court
on December 7, 2022, arguing that testimony that “MPD General Orders are policy statements
and not law” should be excluded. See Transcript of Jury Trial, December 7, 2022 (Afternoon
Session) (“Dec. 7 Tr.”) at 63:19-64:8, 65:18-66:3. Counsel for the government stated that “[i]n
our view, that is something that the Court is available to instruct the jury on, and I think we've
expected the Court would instruct the jury on from the outset. So if that's her anticipated
testimony, it is unclear to us why we need her at all.” Id. at 64:4-8. The government further
stated that “we all are in agreement that it’s not the law. We will not be opposing an instruction
to that effect which, in turn, obviates the need to have Ms. O’Connell testify at all.” Id.
at 65:25-66:3.
The Court agreed with the government and orally ruled that Ms. O’Connell’s
testimony will be excluded in full. See Dec. 7 Tr. at 67:10. In explaining its reasoning, the
Court stated the following:
[W]e have had lots of witnesses already who have testified about
what the MPD General Orders are, that they're guidance, that
they're standards they apply, that they're things they're taught on,
that they're supposed to follow them, that the two General Orders
that were most prominently discussed can work side by side and
are both supposed to be followed.
It's been said by fact witnesses, by expert witnesses, by officials
high up who are, some of whom are also fact witnesses. And I
think there's also a fair amount of testimony that the defense may
find helpful from some of the witnesses who testified who said,
yeah, you're supposed to follow them but sometimes there is, stuff
happens. And there are some number of witnesses in the last week
or so who -- I'm paraphrasing obviously -- who have said things
like that.
Id. at 64:11-65:1. The Court further questioned what Ms. O’Connell “is [] adding to the mix that
hasn't already been said by people who have testified as experts and people who have actually
been fact witnesses who had something to say.” Id. at 65:3-6. Before making its final ruling,
however, the Court gave counsel for Mr. Sutton the opportunity to file a brief on this issue,
which he declined. See id. at 67:1-6.
The Court now reiterates its oral ruling that testimony that “MPD General Orders
are policy statements and not law” will be excluded at trial. To start, despite Mr. Sutton’s
argument that this is “not a matter of whether it's cumulative. It's a matter of qualitativeness
[because] [s]he's the head of the food chain,” Dec. 7 Tr. at 66:5-7, the Court concludes that this
testimony risks “needlessly presenting cumulative evidence” under Rule 403 of the Federal
Rules of Evidence, which substantially outweighs its probative value. FED. R. EVID. 403. More
importantly, it gets close to the line between standards and law, and the Court has ruled that no
witness — lay or expert — can opine on the law. See United States vy. Sutton, Crim. No. 21-0598,
2022 WL 13940371, at *19 (D.D.C. Oct. 23, 2022) (“The Court will instruct the jury on the law,
as relevant.”); United States v. Sutton, Crim. No. 21-0598, 2022 WL 16960338, at *9-11 (D.D.C.
Nov. 16, 2022) (excluding all expert testimony on “legal conclusions”).
Furthermore, the Court has already twice instructed the jury on the proper use of
the MPD General Orders, and it will do so again before jury deliberations. The Court gave the
following jury inStruction before the testimony of experts Robert Drago and Carolyn Totaro:
I'm going to give you an instruction right now. There will be more
instructions at the end of the case, obviously.
The government previously has introduced evidence regarding
certain MPD general orders. And one in particular is the MPD
general order on vehicular pursuits. The next witness is an expert
witness called by the government. The MPD general orders set
internal policy for the Metropolitan Police Department. The
general orders are not laws. They're provisions that are
administered exclusively by the Metropolitan Police Department.
It is up to you whether to accept or reject this evidence that you're
about to hear, and any testimony from any witnesses about the
Metropolitan Police Department general order on vehicular
pursuits. If you find, at the end of the case, when you deliberate,
that one or more of the officers on trial violated this general order,
you may consider the general order. And the relevant training is
only one factor in deciding whether the defendants had the
necessary mental state, state of mind underlying the crimes
charged.
And I gave you preliminary instructions on the crimes charged
before we started. I will give you more detailed instructions on the
crimes and on the law generally at the close of the case.
You may not find cither defendant guilty of anything merely
because they violated the general order, if you conclude that they
did violate the general order.
Transcript of Jury Trial, November 3, 2022 (Afternoon Session) at 51:23-52:24 (Drago
instruction); see also Transcript of Jury Trial, November 15, 2022 (Afternoon Session) at 8:5-25
(Totaro instruction).
In accordance with its oral ruling in open court on December 7, 2022, Ms.
O’Connell will be precluded from testifying that “MPD General Orders are policy statements
and not law” and any related matters. Mr. Sutton may call Ms. O’Connell, however, if she has
relevant testimony to offer on other issues.
SO ORDERED.
ZL Abad
PAUL L. FRIEDMAN ~
United States District Judge
DATE: /a[?/2o