Albany Times Union
‘Racial’ remarks derail verdict
Judge says Albany lawyer denied rape defendant “fair trial” with dog comparison
ALBANY — A judge in Otsego County overturned a civil jury’s verdict and $2.75 million award in a sexual assault lawsuit, ruling that the plaintiff ’s attorney egregiously appealed to the “worst tendencies in society” and compared a Black defendant to a dangerous dog.
In a scathing 13-page decision, state Supreme Court Justice Brian D. Burns said the remarks of Albany attorney Carlo de Oliveira last summer went beyond the bounds of fair comment to the extent that they could have altered the jury’s perception of evidence, shifting the burden of proof to the defendant.
It was grounds, Burns said, for a new trial.
“In this case, plaintiffs counsel’s repeated appeal to racial stereotypes was egregious and shocking,” the judge stated. “It constituted an appeal to the worst tendencies in society, and by extension, this jury. The court could reasonably be seen to implicitly condone this conduct if it denies the motion to vacate and allows the verdict to stand. The defendants deserve a fair trial; one free from any implicit racial stereotyping or indeed reference to race at all.”
In 2018, de Oliveira filed the lawsuit on behalf of the mother of a girl who alleged Jordan Manikas had sexually assaulted her 14-year-old daughter during a sleepover in May 2016. The girl was friends with Manikas’ younger sister.
The lawsuit accused Manikas, who was 20 at the time, of battery and his parents of negligence.
In his opening statement at trial last July, de Oliveira told jurors that Allan and Melissa Manikas had turned a blind eye when they allowed the 14-year-old
to sleep in the same house as Jordan Manikas when they allegedly knew their son posed possible danger.
“I’ll take, for example, a homeowner who has a dog and the dog is known to bite people,” de Oliveira told the jury. “You bring that child into a room with a dog that you know bites. You know he has bitten people before. And you go to sleep. And as a result, that dog seriously injures the child.”
In the defense’s opening, Buffalo-based attorney Keith D. Miller immediately told the jury: “I had a message that I was going to give you this morning. (It) got a little truncated when I heard this lovely family’s young Black son just compared to a dog. That’s offensive.”
Burns’ decision said de Oliveira also blatantly ignored directives, filed a brief that was hundreds of words longer than allowed, notarized an affidavit he could not have been present to witness, repeatedly tried to introduce inadmissible evidence, made baseless and disparaging accusations of his opposing counsel and asked jurors to be the “conscience of the community” in rendering their verdict.
The judge’s Jan. 25 ruling vacated that verdict against Manikas and his parents as well as the jury’s subsequent $2.75 million award to the plaintiff. The judge recused himself from presiding over a retrial of the case due to the fact that he had filed a complaint against de Oliveira with the attorney grievance committee of the Appellate Division of state Supreme Court’s Third Department.
Court papers show de Oliveira, a 44-year-old attorney who works at the Albany firm of Cooper Erving & Savage, appealed the judge’s ruling to the Third Department.
“We are in the process of refuting each and every allegation made by Judge Burns via a motion to re-argue,” de Oliveira told the Times Union in an email Tuesday. “We will soon be filing our motion to reargue this decision and, as you will see, none of these allegations are present in the record. As a civil rights attorney who is member of a protected class (Latino), I am especially sensitive to these issues and I am personally offended by Judge Burns’ unsupported and defamatory allegations that I made racially insensitive remarks during the trial.”
De Oliveira told the Times Union the judge had violated his duty to keep ethical complaints against attorneys private. He said he was shocked the judge made “career-threatening allegations” that he contends are unsupported.
“I fully intend to defend myself against Judge Burns’ unjustified attacks on my reputation and to appeal his decision to protect my client from further harm,” de Oliveira stated.
The attorney’s law partner, state Assemblyman Phil Steck, signed motion papers to reargue the matter. Michael Hutter, a past Court of Appeals nominee, also wrote a letter to support de Oliveira, saying none of the judge’s remarks were supported by the record.
“In all my years of practice, I have never seen a trial judge, in a written opinion, express admiration for one attorney while denigrating another,” Steck said. “That can only be regarded as an expression of favoritism, which is what Judge Burns did in this case.”
The jury’s now-overturned verdict was still on the firm’s website as of Monday night, nearly two weeks after the judge’s decision. The website said de Oliveira, a native of Rio de Janeiro, Brazil, graduated from the University of Maryland School of Law. He has a practice focused on civil rights, labor and employment.
De Oliveira has defended his comparison of Jordan Manikas to a dog, saying in an affidavit that it is common in tort cases. He argued that up until his remarks in the opening statement, the jury did not know Manikas’ race because he had not yet been in court. He argued that the allegations of racial stereotyping were “downright false” and his analogy was allowable by jury instructions.
In his ruling, the judge noted that Manikas was the only Black person in the case. Burns criticized de Oliveira’s attempt to “defend the indefensible” by referring to what’s allowable in jury instructions.
“As society grows in the understanding of the insidious and pervasive effects of overt and implicit racial bias, what may have been allowed in the past is not proper in the present,” Burns stated. He said jury instructions “cannot be read to approve comparison of an African-american to an animal such as a dangerous dog and, by implication, less than fully human.”
The judge wrote it was difficult to convey the level of shock in the courtroom that followed de Oliveira’s remarks.
“The record does not reflect the audible gasps, from individuals throughout the courtroom, caused by counsel’s words,” Burns stated. “The record does not reflect the acute distress on the faces of Jordan’s parents as they heard an attorney, supposedly an officer of the court, call their son a dangerous animal.”
Burns said de Oliveira engaged in “race-based negative stereotypes of African-american males.” When Manikas testified, the judge said, de Oliveira asked the defendant how many children he had fathered and the number of different mothers for the children. He said the attorney indicated — without evidence — that the defendant fathered children through women he had sexually assaulted.
The judge said de Oliveira repeatedly claimed that multiple officials had referred to Manikas as a “sexual predator.” Burns said only one official had made the allegation — and had not used the word “sexual.”