The Legal Intelligencer
Popper & Yatvin
New Trial Ordered in Suit Over Man's Suicide
Officer Accused of Threatening to 'Out' Teen After Arrest

By Shannon P. Duffy
U.S. Courthouse Correspondent

Finding that a jury simply got it wrong, a federal magistrate judge has ordered a new trial in a civil
rights suit brought by relatives of a man who committed suicide after a police officer allegedly
threatened to tell his family that he was gay.

In his 23-page opinion in
Sterling v. Willinsky, U.S. Magistrate Judge Arnold C. Rapoport said he
was "convinced that the weight of the evidence in this case is against the defendants" because the
testimony of the plaintiff's key witness was corroborated by several credible and "uninterested"

By contrast, Rapoport found, the lead defendant's story was backed up by just one "interested"
witness who admitted that he did not hear the conversation between the officer and the man who
committed suicide.

In his closing paragraphs, Rapoport quoted a passage from a 1996 decision by the late U.S.
District Judge Daniel Huyett 3d in
Cacciavillano v. Ruscello Inc. that Rapoport said "eloquently"
described his own sentiments in the
Sterling case:

"A reasonable jury could not have come up with a verdict for defendants on all of the claims. While
it is unclear if the jury was guided by passion and prejudice or a misunderstanding of their duties,
having had the opportunity to observe the demeanor of the witnesses, the court is certain that the
verdict for the defendants on all claims was contrary to the weight of the evidence and allowing the
verdict to stand would permit a miscarriage of justice."

The ruling is a victory for attorneys Alan L. Yatvin of Popper & Yatvin and David Rudovsky of
Kairys Rudovsky Epstein & Messing, who represented Madonna Sterling, the mother of the man
who committed suicide.

According to court papers, on April 17, 1997, Marcus Wayman, then 18, and Matthew Adamick,
then 17, were parked in a lot adjacent to a beer distributor.

Minersville Officer F. Scott Willinsky grew suspicious because the car's headlights were off and
because the area was known as a high-crime area. After calling for backup, Willinsky was joined
by Officer Thomas Holban and the two officers questioned the young men.

After searching the car and finding condoms, police said the men admitted that they were gay and
had parked to have sex. Both were arrested for underage drinking.

The suit alleged that at the station, police lectured the two men about the Bible's condemnation of
homosexual sex. Willinsky allegedly then threatened Wayman that if Wayman did not tell his
grandfather that he was gay, Willinsky would do so himself.

After the alleged threat, Adamick said Wayman told him that he was going to kill himself. Police
later forced Adamick to tell his mother that he was gay. Wayman was released from custody later
that night and committed suicide in his home.

When Rapoport refused to dismiss the suit, the police appealed on qualified immunity grounds.

But the 3rd U.S. Circuit Court of Appeals held that the police were not entitled to "qualified
immunity" because the right to privacy relating to one's sexual orientation was already a "clearly
established" right at the time of the incident.

Although the U.S. Supreme Court has never "definitively extended the right to privacy to
confidentiality of one's sexual orientation," the 3rd Circuit held that a long line of cases from the high
court had clearly established a "zone of privacy" involving "matters of personal intimacy."

As a result, the 3rd Circuit said, the police "should have known" that forcing Wayman to disclose
his sexual orientation would violate his constitutional rights since they admitted that it was "a matter
of private concern."

But when the case went to trial, the jury handed up a verdict that cleared both Willinsky and the
borough of Minersville.

In a post-trial motion, Yatvin and Rudovsky urged the court to take the rare step of setting the
verdict aside because it was "against the weight of the evidence."

"This court has the opportunity to correct a severe injustice," Yatvin and Rudovsky wrote.

"Rule 59 [of the Federal Rules of Civil Procedure] was intended to permit the exercise of discretion
by the grant of a new trial in precisely this situation: where the jury's verdict is inexplicable given the
evidence and where it must have been the result of a serious misjudgment, prejudice or confusion,"
they wrote.

The plaintiff's team said the jury was asked to decide a single issue - whether Willinsky had violated
Wayman's right to privacy.

By finding in favor of Willinsky, they said, the jury "had to reject the overwhelming and credible
testimony that defendant Willinsky had told Marcus Wayman that if he did not tell his grandfather
that he was gay that the officer would do so."

Rapoport agreed, saying the testimony from Adamick was corroborated by several witnesses -
including a high school counselor - who testified that Adamick had told them the same story within
hours of Wayman's suicide.

That testimony, Rapoport said, challenged the credibility of Willinsky, who testified that he did not
make any threat to Wayman.

Rapoport found that Robert Connelly, a counselor at Minersville High School, "was an
exceptionally credible witness" who had "no possible interest in the outcome of this case."

After viewing all the evidence, Rapoport concluded that the plaintiff deserves a new trial because
"the jury's verdict is truly inexplicable."

Copies of the 23-page opinion in, Sterling v. Willinsky, PICS Case No. 02-1035, are available
The Legal Intelligencer. Please refer to the Pennsylvania Instant Case Service order form on
Page 6.)