Lawyers ordered to provide door-to-door apology after their early-morning 'scream test'
Lawyers who wakened South Philadelphia residents with a looped recording of a screaming woman to prove a point in a lawsuit must go door to door to issue in-person apologies, a federal judge has ruled. (Photo from Shutterstock)
Lawyers who wakened South Philadelphia residents with a looped recording of a screaming woman to prove a point in a lawsuit must go door to door to issue in-person apologies, a federal judge has ruled.
In an Oct. 10 opinion, U.S. District Judge John F. Murphy of the Eastern District of Pennsylvania said lawyers for former inmate Termaine Hicks will have to mail written apologies to nearby residents. At least one lawyer will have to go door to door to apologize to those living closest to the recording.
Law.com and Law360 have coverage, while Courthouse News Service published a brief summary and linked to the decision by Murphy.
The 122-decibel recording broadcast for more than an hour beginning at 5:30 a.m. Sept. 23. That volume is “somewhere on the border between uncomfortable and painful and is similar to an ambulance siren, a rock concert or a chainsaw,” Murphy wrote.
Hicks was suing several police officers and the city of Philadelphia for allegedly framing him for a rape. He was imprisoned for 19 years until his conviction was vacated in December 2020.
Hicks had claimed that he heard a woman screaming in the early-morning hours of Nov. 27, 2001, and he went to help. She had been sexually assaulted and was lying on the ground.
According to Hicks, police arrived, shot him three times in the back and planted a gun to frame him for the crime. One issue is whether Hicks could have heard the woman screaming from two blocks away.
Lawyers for the defendants had tried to show that Hicks didn’t hear the screams by hiring an acoustics expert who played a “siren chirp” in the neighborhood. Attorneys for Hicks retained an expert who devised a “scream test.”
The plaintiff’s attorneys had been instructed not to speak directly to city employees and had assumed that the defendants’ counsel would contact police and take necessary precautions.
Police were notified.
“What is clear is that no one provided community members with notice of the scream test,” wrote Murphy, who also had no notice of the plan.
Lawyers for the plaintiffs acknowledged that “residents were clearly upset,” Murphy said. One man came over with a baseball bat. A woman yelled at the acoustics expert. Many wanted to know who was responsible for the recorded scream and asked whom they could contact to complain.
“At best, this lack of forethought and sensitive judgment resulted in a deeply disturbing and potentially dangerous situation,” Murphy wrote. “At worst, it undermined the local community’s confidence in the exact justice system that Mr. Hicks relies on for recourse.”
Murphy decided against withholding the “scream test” evidence as a sanction, citing three reasons. The plaintiff’s counsel did not act maliciously, there is no apparent prejudice to the defendants, and banning the evidence “would have misplaced effects,” Murphy said.
“Such an action would benefit defense counsel, who were present for the scream test and at least complicit in allowing the test to move forward,” he said.
Lawyer Emma Freudenberger of the law firm Neufeld Scheck Brustin Hoffmann & Freudenberger took personal responsibility for what happened, Murphy said in a footnote. The judge allowed any lawyer for the plaintiffs to conduct the in-person apologies, however.
Law360 reported that two firms represented the plaintiff. The second is Kairys Rudovsky Messing Feinberg & Lin. Freudenberger and other lawyers for the firms did not immediately reply to an ABA Journal email seeking comment.
The case is Hicks v. City of Philadelphia.
