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Cause No. DC-15-O7174
John Doe I, Individually and as Next § In the District Court
Friend of John Doe II, a Minor, §
Plaintifi‘s, §
§ Dallas County, Texas
v. §
§
Alexander A. Anderson, et a1 § 44th Judicial District
Defendants. §
Order Granting Mistrial and Ordering a New Trial
On December 4, 2017, John Doe I and John Doe II (”Plaintiffs”) and William C.
Anderson, LeVonna C. Anderson both d/b/a Anderson Private School and Alexander
A. Anderson (Defendants/Counter Plaintiffs) appeared and announced ready for
trial. A jury was duly empaneled and sworn and heard the evidence and arguments 0f
counsel. In response to jury questions and instructions submitted by the Court, the jury
made findings which were received by the Court and were filed and entered on the
record as a unanimous verdict on December 15, 2017. Plaintiffs moved for judgment on
the verdict on December 21, 2017. Defendants moved to disregard jury verdict and for
judgment notwithstanding the verdict on December 27 and 29, 2017. Hearings were held
0n January 4 and January 26, 2018.
Before the Court signed a final judgment in this Cause, on January 30, 2018,
Defendants filed a Motion for Mistrial. In the Motion for Mistrial, Defendants assert that
documents labeled Exhibit No. 47, Exhibit N0. 155 and Exhibit No. 156, were neither
offered nor admitted into evidence but were provided to the jury as trial exhibits during
deliberations. There is no indication or allegation that the submission of these three
Order Granting Mistrial Page 1
exhibits was due t0 intentional wrongdoing by anyone. The Court acknowledges that it is
the responsibility of the attorneys for all parties as well as the Court to ensure that only
properly admitted evidence is submitted to the jury for consideration.
After reviewing the Defendants’ Motion for Mistrial, Plaintiffs’ Response, if any, and
after hearing the arguments and evidence presented to this Ceurt regarding the alleged
error, the Court finds that the jury received materials that had not been properly admitted
into evidence during the trial and had been strenuously objected to at all relevant stages
0f the trial and during pretrial proceedings.
At the pretrial held on February 22, 2017, the parties entered specific identified exhibits
into evidence by agreement. Plaintiffs’ Third Amended Exhibit List was utilized for this
purpose. In Plaintiffs’ Third Amended Exhibit List, Exhibit No. 47 is listed as GH Photo.
Exhibits labeled No. 155 and 156 were not identified or included in Plaintiffs’ Third
Amended Exhibit List.1 The Court admitted Exhibit No. 47 as part 0f a range of exhibits
admitted by agreement. The Court also admitted the range of Exhibits 151-157, without
specifying that the range identified in Plaintiffs’ Third Amended Exhibit List identified
only Exhibit Nos 151, 152, 153, 154 and 157. Plaintiff neither offered nor identified
Plaintiffs’ Exhibit Nos. 155 and 156 nor was the same admitted by agreement.
Exhibit 47 was identified as GH Photo in Plaintiffs’ Third Amended Petition and, that
Exhibit 47 was admitted by agreement; however, the Exhibit 47 which was submitted to
the jury was a document entitled ”14-29216 Case Notes” Which appear to be the
1
The Court takes judicial notice of its docket and file and notes that Plaintiffs’ Original Exhibit List, First
and Second Amended Exhibit Lists are identical in the identification of Exhibit 47 and the failure to include
Exhibit Nos. 155 and 156. At the hearing for the Motion for Mistrial held February 9, 2018, the parties
advised that Plaintiffs’ Fifth Amended Exhibit List was the live pleading.
Order Granting Mistrial Page 2
investigative case notes from GPPD Detective Makovy. The submitted document of case
notes are neither identified in Plaintiffs’ Third Amended Exhibit List, nor was the
document agreed to be submitted to the jury as evidence. On February 9, 2018, it was
determined that the case notes were Exhibit No. 47 to Det. Makovy’s deposition.
Included in the exhibit binder produced t0 the jury were two exhibits not included on
Plaintiffs’ Third Amended Exhibit List: Exhibit No. 155, a journal article entitled ”Living
the Categorical Imperative: autistic perspectives on lying and truth telling-between Kant
and care ethics;” and Exhibit 156, a one-page copy of a website screenshot with a post
called ”Lying in Autism: A Cognitive Milestone.” Neither were offered nor admitted into
evidence in this cause. Defendants’ counsel argued that had either Exhibit 155 0r 156 been
offered by Plaintiffs during the trial on the merits, Defendants’ counsel would have
objected to such admission.
The Court utilizes a Chart to identify admitted exhibits for ease of reference by the
Court during trial, which included highlighting of the range of Exhibit Nos. 151-157.
Upon comparison with the Plaintiffs’ Third Amended Exhibit List, the Court circled
Exhibit Nos. 155 and 156 to identify those erroneously highlighted and not admitted into
evidence. This chart, rather than Plaintiffs’ Third Amended Exhibit List, was utilized by
the court reporter and Plaintiffs’ counsel to compile the binder 0f exhibits t0 be tendered
to the jury. The court reporter had not received a copy of all the exhibits admitted by
agreement or through court ruling at any time prior to the compilation process. Plaintiffs’
exhibits were maintained in two separate binders, without exhibit labels, instead
Order Granting Mistrial Page 3
organized behind numeric tabs? Counsel for the Defendants did not assist with this
process; rather advised during the February 9, 2018, hearing that they thought the exhibits
would be submitted electronically.
The Court finds that none of these documents, labeled as Plaintiffs’ Exhibit Nos. 47,
155 and 156, was admitted into evidence by agreement or during the trial, and the jury
should not have had access to these documents during deliberation. While some of the
information contained therein may be duplicative of testimony received by the jury, the
Court finds that these documents were prejudicial to the Defendants’ case. Any objections
to the admission of these documents would have been sustained if these documents had
been offered into evidence by the Plaintiffs, and at all relevant times such exhibits were
objected to by the Defendants. The Court finds that all three of these documents contained
information that was reasonably calculated to influence the jury’s determination 0f facts
related to all Claims asserted against the Defendants. Considering the entirety of the other
evidence presented at trial, the Court finds that this error probably caused the rendition of
an improper verdict. The Court further finds that neither Defendants nor their counsel
were aware that these documents had been submitted among the Plaintiffs’ trial exhibits
prior to the receipt and filing of the jury’s verdict, despite their shared responsibility to
ensure the correctness of all evidence submitted to the jury.
The Court finds that the error caused by submitting these documents to the jury cannot
be corrected except by granting a mistrial in this Cause because the jury was dismissed
after returning their verdict. Because this error was not brought to the attention of the
2
The Court notes that the handwritten label P47, P155 and P156 were made by the court reporter during the
scanning process to identify the documents behind numeric tabs to distinguish between the unlabeled
exhibits.
Order Granting Mistrial Page 4
Court until after the jury was dismissed, the trial court cannot impose any other remedy
to correct the error. For all 0f these reasons, the Court finds that the only remedy
available, in the interest of justice, is to grant a mistrial.
It is therefore ORDERED that Defendant’s Motion for Mistrial is GRANTED, and it is
further
ORDERED that this Cause will return to this Court’s active docket to be set for trial on
April 2, 2018 at 9:00 a.m.
’1
so ORDERED onthe [1 day ofFebruary: 201 ./
JUDGE P'RE'SIDINVG
Order Granting Mistrial Page 5
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Cause No. DC-15-O7174 John Doe I, Individually and as Next § In the District Court Friend of John Doe II, a Minor, § Plaintifi‘s, § § Dallas County, Texas v. § § Alexander A. Anderson, et a1 § 44th Judicial District Defendants. § Order Granting Mistrial and Ordering a New Trial On December 4, 2017, John Doe I and John Doe II (”Plaintiffs”) and William C. Anderson, LeVonna C. Anderson both d/b/a Anderson Private School and Alexander A. Anderson (Defendants/Counter Plaintiffs) appeared and announced ready for trial. A jury was duly empaneled and sworn and heard the evidence and arguments 0f counsel. In response to jury questions and instructions submitted by the Court, the jury made findings which were received by the Court and were filed and entered on the record as a unanimous verdict on December 15, 2017. Plaintiffs moved for judgment on the verdict on December 21, 2017. Defendants moved to disregard jury verdict and for judgment notwithstanding the verdict on December 27 and 29, 2017. Hearings were held 0n January 4 and January 26, 2018. Before the Court signed a final judgment in this Cause, on January 30, 2018, Defendants filed a Motion for Mistrial. In the Motion for Mistrial, Defendants assert that documents labeled Exhibit No. 47, Exhibit N0. 155 and Exhibit No. 156, were neither offered nor admitted into evidence but were provided to the jury as trial exhibits during deliberations. There is no indication or allegation that the submission of these three Order Granting Mistrial Page 1 exhibits was due t0 intentional wrongdoing by anyone. The Court acknowledges that it is the responsibility of the attorneys for all parties as well as the Court to ensure that only properly admitted evidence is submitted to the jury for consideration. After reviewing the Defendants’ Motion for Mistrial, Plaintiffs’ Response, if any, and after hearing the arguments and evidence presented to this Ceurt regarding the alleged error, the Court finds that the jury received materials that had not been properly admitted into evidence during the trial and had been strenuously objected to at all relevant stages 0f the trial and during pretrial proceedings. At the pretrial held on February 22, 2017, the parties entered specific identified exhibits into evidence by agreement. Plaintiffs’ Third Amended Exhibit List was utilized for this purpose. In Plaintiffs’ Third Amended Exhibit List, Exhibit No. 47 is listed as GH Photo. Exhibits labeled No. 155 and 156 were not identified or included in Plaintiffs’ Third Amended Exhibit List.1 The Court admitted Exhibit No. 47 as part 0f a range of exhibits admitted by agreement. The Court also admitted the range of Exhibits 151-157, without specifying that the range identified in Plaintiffs’ Third Amended Exhibit List identified only Exhibit Nos 151, 152, 153, 154 and 157. Plaintiff neither offered nor identified Plaintiffs’ Exhibit Nos. 155 and 156 nor was the same admitted by agreement. Exhibit 47 was identified as GH Photo in Plaintiffs’ Third Amended Petition and, that Exhibit 47 was admitted by agreement; however, the Exhibit 47 which was submitted to the jury was a document entitled ”14-29216 Case Notes” Which appear to be the 1 The Court takes judicial notice of its docket and file and notes that Plaintiffs’ Original Exhibit List, First and Second Amended Exhibit Lists are identical in the identification of Exhibit 47 and the failure to include Exhibit Nos. 155 and 156. At the hearing for the Motion for Mistrial held February 9, 2018, the parties advised that Plaintiffs’ Fifth Amended Exhibit List was the live pleading. Order Granting Mistrial Page 2 investigative case notes from GPPD Detective Makovy. The submitted document of case notes are neither identified in Plaintiffs’ Third Amended Exhibit List, nor was the document agreed to be submitted to the jury as evidence. On February 9, 2018, it was determined that the case notes were Exhibit No. 47 to Det. Makovy’s deposition. Included in the exhibit binder produced t0 the jury were two exhibits not included on Plaintiffs’ Third Amended Exhibit List: Exhibit No. 155, a journal article entitled ”Living the Categorical Imperative: autistic perspectives on lying and truth telling-between Kant and care ethics;” and Exhibit 156, a one-page copy of a website screenshot with a post called ”Lying in Autism: A Cognitive Milestone.” Neither were offered nor admitted into evidence in this cause. Defendants’ counsel argued that had either Exhibit 155 0r 156 been offered by Plaintiffs during the trial on the merits, Defendants’ counsel would have objected to such admission. The Court utilizes a Chart to identify admitted exhibits for ease of reference by the Court during trial, which included highlighting of the range of Exhibit Nos. 151-157. Upon comparison with the Plaintiffs’ Third Amended Exhibit List, the Court circled Exhibit Nos. 155 and 156 to identify those erroneously highlighted and not admitted into evidence. This chart, rather than Plaintiffs’ Third Amended Exhibit List, was utilized by the court reporter and Plaintiffs’ counsel to compile the binder 0f exhibits t0 be tendered to the jury. The court reporter had not received a copy of all the exhibits admitted by agreement or through court ruling at any time prior to the compilation process. Plaintiffs’ exhibits were maintained in two separate binders, without exhibit labels, instead Order Granting Mistrial Page 3 organized behind numeric tabs? Counsel for the Defendants did not assist with this process; rather advised during the February 9, 2018, hearing that they thought the exhibits would be submitted electronically. The Court finds that none of these documents, labeled as Plaintiffs’ Exhibit Nos. 47, 155 and 156, was admitted into evidence by agreement or during the trial, and the jury should not have had access to these documents during deliberation. While some of the information contained therein may be duplicative of testimony received by the jury, the Court finds that these documents were prejudicial to the Defendants’ case. Any objections to the admission of these documents would have been sustained if these documents had been offered into evidence by the Plaintiffs, and at all relevant times such exhibits were objected to by the Defendants. The Court finds that all three of these documents contained information that was reasonably calculated to influence the jury’s determination 0f facts related to all Claims asserted against the Defendants. Considering the entirety of the other evidence presented at trial, the Court finds that this error probably caused the rendition of an improper verdict. The Court further finds that neither Defendants nor their counsel were aware that these documents had been submitted among the Plaintiffs’ trial exhibits prior to the receipt and filing of the jury’s verdict, despite their shared responsibility to ensure the correctness of all evidence submitted to the jury. The Court finds that the error caused by submitting these documents to the jury cannot be corrected except by granting a mistrial in this Cause because the jury was dismissed after returning their verdict. Because this error was not brought to the attention of the 2 The Court notes that the handwritten label P47, P155 and P156 were made by the court reporter during the scanning process to identify the documents behind numeric tabs to distinguish between the unlabeled exhibits. Order Granting Mistrial Page 4 Court until after the jury was dismissed, the trial court cannot impose any other remedy to correct the error. For all 0f these reasons, the Court finds that the only remedy available, in the interest of justice, is to grant a mistrial. It is therefore ORDERED that Defendant’s Motion for Mistrial is GRANTED, and it is further ORDERED that this Cause will return to this Court’s active docket to be set for trial on April 2, 2018 at 9:00 a.m. ’1 so ORDERED onthe [1 day ofFebruary: 201 ./ JUDGE P'RE'SIDINVG Order Granting Mistrial Page 5