Malvin Washington v. Michelle Parkinson

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3042
MALVIN WASHINGTON,
Plaintiff-Appellant,
v.
MICHELLE PARKINSON,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cv-06245 — Virginia M. Kendall, Judge.
ARGUED NOVEMBER 4, 2013 — DECIDED DECEMBER 11, 2013
Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Malvin Washington filed a civil suit
alleging that the officer who arrested him during a double
homicide investigation used excessive force. The jury found in
favor of the officer. Washington now appeals, arguing that the
district court abused its discretion in denying Washington’s
challenge for cause to one of the jurors who heard his suit. But
Washington waived this challenge, and we reject his argument.

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2 No. 12-3042
I. BACKGROUND
Washington was arrested on January 30, 2007, as a suspect
in the double homicide of Jesse Brown and Jacqueline Lemons.
While the criminal charges against him were pending, he filed
a civil suit under 42 U.S.C. § 1983 against Officer Michelle
Parkinson, alleging that she kicked him in the face and hit him
with a flashlight while he was transported in a police wagon
following his arrest.
A. Voir Dire
The district court judge conducted voir dire of 28 potential
jurors to select the twelve-person jury that would hear Wash-
ington’s case. The judge explained to the prospective jurors
that each juror would be asked a series of questions. If a
question touched on something a potential juror preferred not
to discuss in open court, she could request a sidebar. The judge
added that some of the questions would cover civil lawsuits,
administrative proceedings, and criminal prosecutions, and
carefully described each legal proceeding.
When the court called Juror Evans, he answered questions
concerning his demographic and family background with no
incident. The judge then asked Evans if he had ever been
involved with the civil or criminal justice system. Evans
responded, “Not that I know of.” Upon prompting by the
judge, Evans said he had no clue what the question meant. The
judge then broke the question down, asking Evans whether he
had ever sued anyone or been sued, and whether he had ever
been arrested. Evans admitted he had been arrested. When
asked to elaborate, Evans requested a sidebar.

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No. 12-3042 3
At sidebar, Evans explained that he had a DUI pending that
had been pending for over two years. The court then asked
whether Evans had any strong feelings about the police arising
from that arrest. Evans said, “I have no clue. I—I was—I
was—I died at the scene.” The court questioned him further,
and Evans clarified that he had been in a motorcycle accident
after which he had to be revived three times. He said he
suffered head injuries in the accident but that he did not have
difficulty sitting and listening or any lasting cognitive prob-
lems. Throughout questioning, Evans spoke slowly and would
frequently tilt his head back and close his eyes.
Washington challenged Evans for cause, arguing that “even
though he says he doesn’t have cognitive problems, he does
seem to have trouble getting his words out.” The district court1
considered Washington’s point and then asked Parkinson what
she thought. Parkinson responded that she did not think there
was enough to show that Evans had cognitive difficulties, and
that overall, Evans seemed capable of being an impartial juror.
The court concluded that it would not strike Evans for cause.
B. Offer to Empanel a New Jury
When trial began, Washington was represented by counsel,
who presented his opening statement without incident.
Defense counsel then began his opening statement, in which he
described Washington at the crime scene kneeling over one of
the victims. At this point, Washington interrupted, saying,
“Can you let the jury know that I’m related to these people?
They need to know that I’m related. My sister-in-law. Make me
Washington had already used his three peremptory strikes.
1

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4 No. 12-3042
look like I’m a stranger.” Washington’s counsel requested a
recess, which the court granted. Even after the recess was
granted, Washington continued to speak. The court cut him off
and asked the jury to leave the courtroom.
After the jury left, Washington said he wanted to address
the court. He said he was concerned about the way the case
was being presented and that he intended to fire his appointed
counsel and proceed pro se. The judge told Washington that he
could represent himself if he chose, but also told him that his
attorney was an experienced civil rights litigator. She also told
Washington he would have to refrain from any further
outbursts, and that he should confer with counsel about how
to proceed. After a brief discussion, counsel informed the court
that Washington wished to proceed on his own. The judge
excused Washington’s attorney, but invited him to stay and
watch the trial.
The judge discussed with Washington how the trial would
proceed. She then called a recess in order to determine whether
a new jury needed to be called. After the recess, the judge
asked Washington whether he wanted to continue with the 12
jurors who had originally been chosen, despite the fact that
they saw him argue with his attorney. Washington consented
to continue with the original jury.
But shortly thereafter, Washington decided he did not want
to proceed pro se after all. Washington’s appointed counsel
was still present, and the court asked him to talk with Wash-
ington to see if they could reach an agreement. After a discus-
sion, Washington apologized to the court for his earlier

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No. 12-3042 5
conduct, the jury was called back in, and defense counsel
began his opening statement again.
The jury returned a verdict in favor of Officer Parkinson.
Washington appeals that verdict, arguing that the district court
inappropriately denied his challenge for cause to Juror Evans.
II. ANALYSIS
Washington argues on appeal that the district court erred
in denying his challenge for cause to Juror Evans because
Evans was incompetent to serve as a juror. Although he
preserved this argument by objecting to Evans during voir
dire, United States v. Brazelton, 557 F.3d 750, 753 (7th Cir. 2009),
he later agreed to the originally-selected jury and thus has
waived any right to challenge the jury’s composition on
appeal.
Washington explicitly agreed to proceed with the
originally-selected jury when asked by the district court judge
if he wished to do so. As we have previously noted, a more
obvious intentional relinquishment of a known right is hard to
imagine. Id. at 753. This is a textbook example of waiver.
Washington tries to argue that because he was not present at
sidebar, he did not know of the for-cause challenge to Juror
Evans, and thus could not have intentionally relinquished any
right. But an attorney is the agent of her client, and an agent’s
knowledge is imputed to her principal. Bakery Mach. & Fabrica-
tion, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir.
2009) (attorney is agent of client); Frey v. Fraser Yachts, 29 F.3d
1153, 1158 (7th Cir. 1994) (knowledge of attorney imputed to
client).

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6 No. 12-3042
III. CONCLUSION
Given Washington’s explicit waiver of any challenge to the
jury composition, we cannot consider his claim. We thus
AFFIRM the decision of the district court.

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