Washington Gadfly

Schultz Plaintiff Appeal Zings Shrewish Obama Judge For Rank Bias

United States District Court Judge Beryl Howell, an Obama appointee and donor, undoubtedly enjoyed herself immensely when she presided over Ed Schultz’s 2015 trial, repeatedly berating and mocking the amiable lawyer for plaintiff Michael Queen.

But she probably blew her chances of being confirmed to a higher bench if Hillary Clinton is elected president.

Thanks to Howell stacking the decks, particularly with misleading and inflammatory jury instructions, Queen lost his breach of partnership case against Schultz, even though it emerged at trial that MSNBC president Phil Griffin perjured himself in prior depositions by saying he recruited Schultz independently of Queen’s efforts to get him a show.

The mammoth appeal Queen’s lawyers have filed with the U.S. District Court of Appeals paints a damning portrait of Howell, who failed to disclose her husband’s ties to the broadcast industry, gives the Senate Judiciary Committee innumerable reasons to deny her any future confirmations.

Howell is accused of twisting the law and facts at almost every possible opportunity to let Schultz argue he never entered into a legally binding partnership with Queen and therefore owed him no money for his labors.

The appeal accuses Howell of these reversible errors:

  • Omitting from jury instructions the fact that D.C. law says partnerships can be formed even without overt intent, so no written agreement is needed.
  • Wrongly excluding as hearsay and immaterial exchanges between Queen and Schultz that would have buttressed his case that they formed a legally binding partnership
  • Improperly allowed Schultz’s lawyer to prejudice the pre-dominantly black jury against Queen by suddenly referencing indentured servitude — essentially slavery — in his closing statement. Introducing a new and “inflammatory” argument without required advance notice, Hayes asserted that if Queen’s asssertion of a partnership was correct it would mean Schultz was indefinitely bound to Queen like a slave in violation of the 13th Amendment.
  • Allowing Schultz to prejudice jurors by improperly telling them about prior rulings against Queen when the case was first filed that should have been excluded.

Most importantly, the appeal also says that Howell basically took every opportunity to stack the decks for Schultz.

Specifically, she:

  • Threatened [Queen’s trial] attorney Catfish Abbott and Steven Teppler [his co-counsel] with unwarranted ethics sanctions
  • Belittled Abbott as a Jacksonville, Florida attorney who does not understand the “highly educated, experienced, professional people [of] Washington, D.C.”
  • Empowered Schultz to refuse to answer Queen’s questioning, reach into the jury box, and go on a tirade before the jury.
  • Independently provided Schultz with objections to Abbott’s arguments.

In his reply, Schultz’s lawyers, John Hayes and Jeffrey Landa, basically say that even though Howell was kind of shrewish towards Queens lawyers that is not grounds for a new trial.

Although “Judge Howell’s delivery was stern, her comments to counsel cannot establish reversible bias.”

And that even if Howell did everything wrong that Queen alleges, unconvincingly, the jury would have ruled for Schultz anyway because the errors were harmless. “Queen’s arguments for overturning the jury’s verdict now, which are based  in part on objections that were not raised in the district court or were abandoned, are meritless and certainly do not satisfy the high burden of demonstrating that a new trial is warranted.”

In their June 27 reply to Hayes’s counter-motion, lawyers for Queen basically double down on their arguments in their original appeal motion and elaborate on why the exclusion of emails was significant.

“If admitted, the content of the emails would have had a substantial effect on the jury’s verdict because they substantiated Queen’s claims that” he “acted based on directions from Schultz in furtherance of the partnership in pitching and negotiating the terms of the Show.”

This includes an email exchange when Queen and Schultz worked closely together to get the liberal broadcaster a show on Fox after pitches to NBC got nowhere.

“Lets move on,” Schultz wrote Queen. “Fox is next.”

The reply brief also notes that in two emails Howell cast out Schultz explicitly referred to Queen as his partner. More generally, it alleges that “continuous biased acts” by Howell colored the trial in favor of Schultz from start to finish.

No date has been set yet for oral arguments.

Meanwhile, Howell, who is the kind of judge that a President Hillary Clinton might want to elevate to the DC Court of Appeals and possibly the Supreme Court, given her gender and moderate record, might have something else to explain to the Senate Judiciary Committee.

She never disclosed at the trial that her husband worked closely with NBC on joint documentaries when he was a National Geographic television executive.