United States District Court, D. Maryland, Northern Division
December 16, 2014
MARLOW HUMBERT, Plaintiff,
MARTIN O'MALLEY, et al., Defendants
For Marlow Humbert, Plaintiff: Barry R Glazer, Charles Henry Edwards, IV, LEAD ATTORNEYS, Law Office of Barry R Glazer PC, Baltimore, MD.
For Martin O'Malley, Individually and as Governor of the State of Maryland and former Mayor of the City of Baltimore, Defendant: William F Brockman, LEAD ATTORNEY, Consuelo Beatrice Nunez Bellamy, Maryland Office of the Attorney General, Baltimore, MD.
For Mayor and City Council of Baltimore City, Defendant: Daniel J Sparaco, LEAD ATTORNEY, Baltimore City Law Dept, Baltimore, MD; Melodie Hahn Hengerer, Baltimore City Law Department, Baltimore, MD.
For Sheila Dixon, former Mayor of the City of Baltimore, in her individual capacity, Defendant: Daniel J Sparaco, LEAD ATTORNEY, Baltimore City Law Dept, Baltimore, MD; Melodie Hahn Hengerer, LEAD ATTORNEY, Baltimore City Law Department, Baltimore, MD.
For The Baltimore City Police Department, Frederick Bealefeld, Police Commissioner Individually and as Police Commissioner, Baltimore City Police Department, Defendants: Daniel C Beck, LEAD ATTORNEY, Baltimore City Law Department, Legal Affairs Division, Baltimore, MD.
For Chris Jones, Detective Sergeant Individually and as Police Officer, Baltimore City Police Department, Keith Merryman, Detective Individually and as Police Officer, Baltimore City Police Department, Caprice Smith, Detective Individually and as Police Officer, Baltimore City Police Department, Dominick Griffin, Detective Individually and as Police Officer, Baltimore City Police Department, Michael Brassell, Police Officer Individually and as Police Officer, Baltimore City Police Department, Defendants: Michael L Marshall, LEAD ATTORNEY, Chaz Romeo Ball, Schlachman Belsky and Weiner PA, Baltimore, MD.
Cinese Caldwell, Laboratory Technician Individually and as Police Officer, Baltimore City Police Department, Defendant, Pro se.
William D. Quarles, Jr., United States District Judge.
Marlow Humbert sued several police officers and others for constitutional violations under 42 U.S.C. § 1983 and state law claims. ECF No. 1. Pending is Humbert's motion to allow testimony by contemporaneous transmission. ECF No. 160. No hearing is necessary. Local Rule 105.6 (D. Md. 2014). For the following reasons, the motion will be granted.
On April 30, 2008, a woman told police that she had been raped at her home in Baltimore's Charles Village neighborhood. See ECF No. 160 at 3. The Victim reported that, when she entered her home, an unknown man had approached her from behind, and forced her inside. Id. The man pointed a black handgun at her head. Id. He demanded money, but she told him she had none. Id. The man then pushed her onto a nearby couch and raped her. Id. The Victim described her assailant as a fairly well-spoken black man in his early to mid-30s, five-foot-seven to five-foot-nine inches tall, and wearing a blue T-shirt with a pink logo, a white face mask, black cotton gloves, and tennis shoes. Id. at 3-4.
After the attack, the Victim--a trained artist--completed a sketch of her attacker. Id. at 4. Investigating officers informed the Victim that she had to complete a composite with a police sketch artist. Id. The Victim declares that " the features of [her] assailant from [her] sketch" and her " communications with the sketch artist were not incorporated into the composite sketch." Id.
A few days later, officers met with the Victim and showed her two photo books of potential suspects. Id. After reviewing the book of photos, the Victim stated that two of the photos resembled her attacker, but she did not identify either as her attacker. Id. She declares that she told the officers that she needed to see suspects in person and hear their voices to identify her attacker. Id.
On May 8, 2008, officers showed the Victim an array of photos that included Humbert's photo. Id. The Victim declares that she saw Humbert's photo, said that " might" be him, but was unsure. Id. She declares that she was " made to sign something, and despite my protests, was assured that it was just procedure." Id. at 5. She also declares that the officers told her that no arrests would be made until she saw the suspects in person and heard their voices. Id. The Victim " was shocked" when she learned that Humbert had been arrested. Id.
Assistant State's Attorney Tan was assigned to prosecute Humbert for the rape of the Victim. Id. The Victim attended Humbert's June 23, 2008 arraignment. Id. She declares that she told officers at the arraignment that she " could not identify Mr. Humbert and that after seeing him in person, [she] had even more doubt as to whether he was [her] attacker." Id. The Victim further declares that Tan first called her " just prior to when the charges against Mr. Humbert were dropped, " and she told him that she was unsure that Humbert was her attacker. Id.
After the rape and police investigation, the Victim received psychotherapy and--in 2010--was diagnosed with Post Traumatic Stress Disorder (" PTSD"). Id. at 6. She declares that " whenever she thinks about returning to Maryland, she becomes scared and has overwhelming and debilitating feelings of anxiousness, helplessness, and [many] of the other emotions she experienced at the time of her rape." Id. The Victim further declares that her symptoms have been " compounded by the recent conduct of the [police defendants'] counsel." Id.
About five years after the Victim was raped, she received a phone call from the police defendants' counsel. Id. The Victim characterizes the phone call as " aggressive, accusatory, and abusive." Id. The police defendants' counsel avers that " the conversation was cordial, and [the Victim] was forthcoming with information." ECF No. 161 at 8.
On or about August 14, 2013, an unknown investigator showed up at the side door of the Victim's home. ECF No. 160 at 7. The Victim's seven-year old son answered the door. Id. The investigator represented the Defendants, but stated that " talking to him would increase Mr. Humbert's settlement." Id. The Victim told the man " that if he wanted to talk to [her], he would have to speak to [her] lawyer." Id. at 20. After consulting with her attorney, the Victim declined to speak to the investigator. Id.
That the perpetrator " is still at large [has] robbed [the Victim] of her sense of safety and security in the State of Maryland"; she declares that " she will never feel safe or secure in Baltimore or any other area in or around Maryland." Id. at 8. After the rape, the Victim moved to Flint, Michigan, " with the intention of never coming back." Id.
E. Procedural History
On February 17, 2011, Humbert filed a 19-count complaint. ECF No. 1. On November 28, 2011, the Court dismissed counts four to six for failure to state a claim. ECF Nos. 35-36. On March 27, 2012, the Court granted the defendants' motion to bifurcate the case and stay discovery on all claims except those asserted against the police defendants. ECF Nos. 52-53. On March 25, 2014, the Court granted the police defendants' motion for summary judgment on all claims against Brassell and Merryman, and granted summary judgment on counts two, seven, eight, nine, ten, twelve, thirteen, fourteen, and nineteen for Smith, Jones, and Griffin--the remaining police defendants. ECF Nos. 138-39.
On November 18, 2014, Humbert moved to allow the Victim's testimony by contemporaneous transmission. ECF No. 160. Humbert requests the Victim be permitted to " testify live from the United States District Court for the Eastern District of Michigan, using internet videoconferencing." Id. at 10. On December 1, 2014, the police defendants opposed Humbert's motion. ECF No. 161. On December 10, 2014, Humbert replied. ECF No. 162.
Federal Rule of Civil Procedure 43(a) provides that " [f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." 
The parties dispute whether there is " good cause" or " compelling circumstances" to merit contemporaneous transmission. See ECF Nos. 160 at 9; 161 at 2. Humbert contends that " serious medical and logistical reasons" -- including the Victim's PTSD, " fears and debilitating anxiety associated with the State of Maryland, " and the home-schooling of her autistic son--prevent her from testifying in person. ECF Nos. 160 at 11; 162 at 3-4. The police defendants contend (1) they will suffer prejudice if the Victim " does not appear in person because [she] has changed her stories several times, " and the police defendants want her demeanor to be visible to the jury, (2) the Victim's " subjective fear of the entire State of Maryland is emblematic of her evasive behavior, "  and (3) " it would be difficult and likely less effective to" question the Victim " about several documents" via contemporaneous transmission. ECF No. 161 at 6-8.
The Fourth Circuit Court of Appeals has not stated a test for determining what constitutes " good cause" or " compelling circumstances";  however, district courts in the Fourth Circuit--and elsewhere--permit contemporaneous transmission in civil cases. See Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D. Md. 2010) (collecting cases).
The Advisory Committee Notes to the 1996 Amendments to Rule 43(a) state that good cause and compelling circumstances are most likely to arise " when a witness is unable to attend trial for unexpected reasons, such as accident or illness." Fed.R.Civ.P. 43 (a) Advisory Committee Notes on 1996 Amendments. " Other possible justifications for remote transmission must be approached cautiously, " as " [t]he very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling, " and " [t]he opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition." Id. The Fourth Circuit has cautioned that " video conferencing may render it difficult for a factfinder in adjudicative proceedings to make credibility determinations and to gauge demeanor." Rusu v. INS, 296 F.3d 316, 322 (4th Cir. 2002) (citing United States v. Baker, 45 F.3d 837, 844-46 (4th Cir. 1995); Edwards v. Logan, 38 F.Supp.2d 463, 467 (W.D. Va. 1999)).
Notwithstanding the Advisory Committee Notes' guidance that inconvenience alone is insufficient,  travel cost and inconvenience have justified contemporaneous transmission in cases involving domestic and international travel.  However, as Humbert asserts, " [i]t is the destination and not the travel" underlying the Victim's inability to testify in person. ECF No. 162 at 4.
Here, Humbert has demonstrated good cause and compelling circumstances. At least one court has permitted contemporaneous transmission when a witness would feel highly uncomfortable appearing in court. See Parkhurst v. Belt, 567 F.3d 995, 1003 (8th Cir. 2009) (affirming use of videoconferencing when child victim of sexual abuse testified at trial against her biological father). Forcing the Victim to return to Maryland to participate at trial may unnecessarily trigger her PTSD symptoms, forcing her to relive " overwhelming and debilitating feelings" associated with her rape. ECF No. 162 at 3-4. Also, her responsibilities toward her young child, id.,  justify her testimony by contemporaneous transmission.
The Court is mindful of the Fourth Circuit's caution that jurors must be able to weigh witness credibility, Rusu, 296 F.3d at 322. As one judge in the District of Maryland has recently noted, " with video-conferencing, a jury will . . . be able to observe the witness'[s] demeanor and evaluate [her] credibility in the same manner as traditional live testimony, " Lopez, 748 F.Supp.2d at 480. The Victim will be testifying " in open court, under oath, and will face cross-examination"; to facilitate questioning, exhibits " can be presented in real time during the transmission." ECF Nos. 160 at 12; 162 at 3-4. The Court finds that the police defendants will not be prejudiced by contemporaneous transmission, and appropriate safeguards will be employed.
For the reasons stated above, Humbert's motion to allow testimony by contemporaneous transmission will be granted.