John W. Perotti v. Diane Quinones , 790 F.3d 712 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1229
JOHN W. PEROTTI,
Plaintiff-Appellant,
v.
DIANE QUINONES and
BILLIE KELSHEIMER,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:10-cv-00086-JMS-MJD— Jane E. Magnus-Stinson, Judge.
ARGUED FEBRUARY 9, 2015 — DECIDED JUNE 22, 2015
Before ROVNER and SYKES, Circuit Judges, and WOOD,
District Judge.*
ROVNER, Circuit Judge. After a one-day trial, a jury rejected
federal prisoner John Perotti’s claim that his promotion from
*
The Honorable Andrea R. Wood, of the Northern District of Illinois,
sitting by designation.
2 No. 14-1229
education orderly to law clerk was delayed in retaliation for his
history of filing administrative grievances. Perotti appeals,
contending that the district court abused its discretion in
denying his petition for a writ of habeas corpus ad testifican-
dum and instead arranging for him to participate in the trial by
video conferencing. At the least, Perotti suggests, the district
court should have ordered all parties to appear by video
conferencing rather than imposing that disadvantage solely on
him. Finding no abuse of discretion in the court’s decision, we
affirm the judgment.
I.
A. Background
In 2005, a federal jury in the Northern District of Ohio
convicted Perotti on the charge that he had unlawfully pos-
sessed ammunition in interstate commerce after having been
previously convicted of a felony. See 18 U.S.C. § 922(g)(1).
Finding that Perotti’s prior convictions qualified him as an
armed career criminal, see 18 U.S.C. § 924(e), the district judge
ordered him to serve a prison term of 210 months.
Perotti was housed at the federal penitentiary at Terre
Haute, Indiana, for a two-year period beginning in April 2008.
Following his orientation at the Terre Haute facility, he found
employment as an orderly in the prison’s education depart-
ment, commencing on April 24. In addition to providing
classroom instruction to inmates, the education department
houses and oversees the prison’s leisure and law libraries. As
an orderly, Perotti would have been responsible for a variety
of janitorial tasks in the department. Orderlies and other staff
were supervised by the department’s instructors.
No. 14-1229 3
Perotti alleged that in August 2008, defendant Billie
Kelsheimer, one of the instructors in the education department,
offered him a promotion to the position of law clerk, in which
capacity he would assist other prisoners with legal research.
He accepted the new position, only to be told later by
Kelsheimer that defendant Diane Quinones, the department
administrator, had disapproved the promotion because Perotti
had filed too many grievances against the department. Only
after associate warden Bonita Mosley intervened at his request
was he finally given the new position, which he officially
assumed as of September 17. Based on these allegations, Perotti
claimed that Quinones and Kelsheimer, by rescinding or
delaying the promotion until Mosley intervened, had retaliated
against him for exercising his First Amendment right to pursue
grievances through the prison’s administrative remedies
system.
Perotti’s tenure as a law clerk ultimately proved to be quite
short. He was removed from the position in early October
2008, after another instructor, Laura Wheeler, filed a miscon-
duct report averring that Perotti had possessed another
inmate’s legal materials outside of the library, in violation of
prison rules. He was ultimately vindicated on that charge and
awarded back pay, but he was not reinstated to the law clerk
position nor given any other job for the remainder of his stay
at Terre Haute. He was transferred to a different facility in
April 2010.
B. Complaint and pre-trial proceedings
Perotti filed suit against Quinones, Kelsheimer, and
Wheeler under Bivens v. Six Unknown Named Agents of Fed.
4 No. 14-1229
Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), alleging
that they unlawfully retaliated against him for the exercise of
his constitutional rights—Quinones and Kelsheimer, by
initially excluding him from the law clerk position for having
filed too many administrative grievances, and Wheeler, for
having him fired for assisting another prisoner with his legal
case. The suit was originally filed in state court, but was
removed to federal court by the defendants. The district court
initially granted summary judgment to all three defendants.
Perotti v. Quinones, 2011 WL 4346397 (S.D. Ind. Sept. 16, 2011).1
In a prior appeal, we upheld the grant of summary judg-
ment to Wheeler, reasoning that because Perotti had no
constitutional right to provide legal assistance to other prison-
ers, he had no viable claim of retaliation against her for
initiating his discharge. Perotti v. Quinones, 488 F. App’x 141,
146 (7th Cir. 2012) (non-precedential decision). But we vacated
the judgment as to Quinones and Kelsheimer, concluding that
questions of fact entitled Perotti to a trial as to whether they
had barred (or temporarily removed) him from the law clerk
position in retaliation for having filed grievances against the
education department, in violation of his First Amendment
rights. Id. at 145.2
1
Our citations to the district court’s orders reflects the correct spelling of
Quinones’s name.
2
Whether the promotion offered to Perotti was initially granted and then
rescinded, or whether it was not implemented at all until after he com-
plained that he was the victim of retaliation—both theories have been
floated at various times during the litigation—is immaterial at this juncture.
(continued...)
No. 14-1229 5
On remand, the district court appointed counsel for Perotti.
That attorney served written discovery, deposed both Qui-
nones and Kelsheimer, and defended Perotti’s deposition,
among other tasks. However, roughly two months prior to
trial, Perotti filed an ex parte request asking for the court’s leave
to assume responsibility for his own representation in light of
a breakdown in the attorney-client relationship. The court
granted that motion and allowed Perotti’s counsel to with-
draw.
One of counsel’s last acts on behalf of Perotti was to file a
motion asking the court to issue a writ of habeas corpus ad
testificandum pursuant to 28 U.S.C. § 2241(c)(5) directing the
Bureau of Prisons to produce Perotti for trial. At that time and
through the conclusion of the trial, Perotti was incarcerated at
the federal penitentiary in Fairton, New Jersey. Perotti was
thus asking the court to order his transport to Indiana. The
United States Attorney, on behalf of the Bureau of Prisons and
the United States Marshals Service, filed a memorandum
opposing the motion, citing the expense, logistical burden, and
security risk posed by relocating Perotti to Indiana for trial.
In a written entry, the court denied Perotti’s request for a
writ securing his presence at the forthcoming trial. Perotti v.
Quinones, 2013 WL 4008188 (S.D. Ind. Aug. 5, 2013). As
guideposts for the exercise of its discretion as to the relief
Perotti was requesting, the court looked to the factors we
articulated in Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir.
2
(...continued)
For the sake of simplicity, we shall simply characterize the alleged
retaliation as the denial of a promotion.
6 No. 14-1229
1976), while having in mind that Perotti could participate in the
trial by video conferencing rather than in person.
The court took note of multiple factors that weighed against
granting the writ. First, the issue to be resolved at trial was
straightforward and required the testimony of relatively few
witnesses, the quantity of any lost wages was small, and,
although an award of punitive damages was possible, the court
was aware of no evidence supporting such an award. 2011 WL
4008188, at *2-*3. Second, Perotti was implicitly asking the
government to bear the expense of his transport, and the
United States Marshals Service had lodged an objection to his
transfer. The fact that Perotti had previously been transferred
among various federal facilities on multiple occasions, as he
pointed out, did not mitigate the expense his production for
trial would entail. Id., at *3. Relatedly, Perotti had been
classified as having a history of serious violence, and his
transport would require extreme caution. Id., at *4. Finally, as
to suitable alternatives, the court deemed a delay of the trial
until the conclusion of Perotti’s prison term (when he could
appear in person without a writ) to be unrealistic, as his release
would not occur until 2019 at the soonest. Id.However, having Perotti appear by video was a realistic
alternative to his physical presence at trial. Without question,
Perotti had an interest in presenting his testimony in person. Id.Nonetheless, the court was convinced, based on Perroti’s
appearance by video at a recent pretrial conference, that this
was an acceptable alternative to ordering his appearance in
person for trial. The court noted that Perotti’s demeanor and
facial expressions had been visible to everyone in the court-
room at the pretrial conference, and that Perotti had been able
No. 14-1229 7
to see the judge, the jury box, defense counsel, and the witness
stand. Id., at *5. Furthermore, because Perotti was representing
himself, having him appear by video did not pose logistical
difficulties as to where his counsel should be and how he and
his counsel might communicate. Id. In sum:
Even with all shortcomings considered, video-
conferencing nonetheless facilitates Perotti’s mean-
ingful participation at trial: he will be virtually
present and able to testify, present evidence, con-
front witnesses and address the jury. Perotti argues
that he will not prevail in this action if he is unable
to appear in person. This Court, however, is con-
vinced that if Perotti does not prevail in this civil
action it will not be because he testified via video
conference.
The use of videoconferencing technology presents a
reasonable alternative to Perotti’s presence at court
and strikes a proper balance between Perotti’s
interests and the countervailing concerns relating to
cost and security associated with producing the
plaintiff at trial.
Id. Separately, the district court ordered the Fairton, New
Jersey penitentiary to make Perotti available for trial by video
link.
C. Use of video conferencing at trial
At the outset of jury selection, as the parties were being
introduced, the court and Perotti jointly made the venire
members aware that he was incarcerated in Fairton, New
8 No. 14-1229
Jersey, and would be appearing by closed-circuit television,
R. 14 at 45-46, but thereafter the court said nothing more to the
jury on that subject. Given the nature of Perotti’s claim (that
prison employees had denied him a promotion in retaliation
for having pursued too many grievances), the jury necessarily
would have understood that he was incarcerated. Although
Perotti suggests that the jury must have wondered why he
alone participated in the trial by video, he does not quarrel
with the court’s brief statement as to his location, nor does he
argue that the court should have given the jury any cautionary
instruction with respect to his status as a prison inmate or the
fact that he was not physically present in the courtroom.
The video feed from Perotti’s place of incarceration was
displayed on a 42-inch monitor in the courtroom, the size of
which permitted everyone in the court, including the jury, to
see his facial expressions. With the exception of a brief inter-
ruption in the feed which we describe below, there is no
indication that anyone in the courtroom had any difficulty
seeing, hearing, or understanding Perotti.3 Of course, Perotti,
not having been present in the courtroom (and not having had
his own advocate in the courtroom), would have no first-hand
knowledge of any shortcomings in this regard. But given how
conscientious the district judge was in making sure that Perotti
could see and hear as much of the trial and the trial partici-
pants as the video conferencing set-up permitted, we are
confident that the judge would have noted and corrected any
3
Defense counsel, on commencing her cross-examination of Perotti, stated,
“I would like to note for the record that I can see you and hear you clearly
this morning. I can see your eyes and your facial expressions.” R. 14 at 97.
No. 14-1229 9
problems the system posed for those present in the courtroom.
See R. 14 at 97 (court confirmed that jurors could see Perotti
and instructed them to raise their hands if they could not).
The simultaneous video feed from the courtroom to Perotti
was displayed on a smaller, 16-inch monitor at the prison
facility. We gather from the record that Perotti’s monitor
displayed a single view of courtroom that initially included the
judge, jury, and witness chair. The camera and microphone
transmitting the courtroom proceedings to Perotti evidently
were located in or on the courtoom video monitor itself; and
the trial transcript reflects that the position of that monitor was
adjusted at times in order to redirect the camera and thereby
facilitate Perotti’s view. See, e.g., R. 14 at 67, 96.
During jury selection, the court had the venire members sit
on folding chairs in the well of the courtroom so that they were
visible to Perotti during questioning. Before the process of jury
selection got underway, the court had its courtroom deputy
clerk sit in one of the folding chairs in order to ascertain how
well Perotti could see her. When Perotti complained he could
not see the clerk’s facial features or expression, the court
adjusted the lights in the courtroom in order to facilitate a
better view. After the jury had been selected and seated in the
jury box, and Perotti indicated that he could not see the jurors’
faces, the court had the video monitor moved two feet closer
to the jury box and had the jurors sit closer to one another and
at one end of the jury box so as to give Perotti a better view.
Later in the proceeding, after Perotti had concluded his
testimony and before his second witness took the stand, the
court had its clerk sit in the witness chair to confirm that
10 No. 14-1229
Perotti could see her. When Perotti indicated that he could not
make out her facial expression, the court decided to have the
witnesses give their testimony from a folding chair on the floor
of the courtroom rather than the raised witness box so that
Perotti would have a better view of the witnesses and the other
participants. When the deputy clerk took a seat in the folding
chair to test out the new arrangement, Perotti confirmed that
he could “see her smiling.” R. 14 at 68. Perotti did not thereaf-
ter complain that he could not see a witness adequately. And
when the time came for defense counsel to examine or cross-
examine a witness, counsel would stand slightly behind the
witness while questioning her, so that Perotti could see both
the witness and counsel at once.
Despite the court’s best efforts, there were at least some
limitations on what Perotti could see. At no time during the
trial was Perotti able to see the entire courtroom. Perotti voiced
that point early on during the trial, noting that he could not see
the defense table, but the court indicated that it was “impos-
sible” to accommodate his wish to see the whole courtroom. R.
14 at 67. Perotti also remarked on multiple occasions during
the trial that he could not see the jurors’ facial expressions.4
And because the courtroom video monitor was re-positioned
during witness testimony so as to present Perotti with the best
possible view of both the witnesses and the jury, Perotti was
not able to see the judge while witnesses were testifying.
4
On one occasion, Perotti remarked that the jury appeared to be distracted,
which the defendants cite as proof that he could, in fact, see their facial
expressions. We shall assume, nonetheless, that Perotti in fact was not able
to make out the facial expressions of individual jurors.
No. 14-1229 11
Finally, Perotti remarked in his closing statement to the jury
that he had difficulty seeing the faces of the other witnesses as
well as those of the jurors, and his counsel has made the same
representation on appeal. But we reiterate that Perotti only
once indicated to the court that he could not see a witness’s
facial expression, and that was before Mosley, the first witness
to testify after Perotti, began her testimony. It was just before
Mosley took the stand that Judge Magnus-Stinson had her
deputy clerk sit in the witness box to confirm that Perotti could
see her adequately; and when Perotti said that he could not,
the judge decided to have the witnesses testify from a folding
chair on the courtroom floor rather than the witness stand.
When the judge’s clerk sat on the folding chair, Perotti noted
that he could see the clerk smiling, which confirms that he
could observe her demeanor. And after that point, Perotti
never informed the court that he had any trouble observing a
witness’s facial expressions, whereas he did raise other
objections to what he could not see. So we discount the notion
that Perotti’s observation of the witnesses was unduly limited.
At one point, while the court was giving the jury its final
instructions before deliberations began, the video and audio
link to Perotti was lost. The court excused the jury from the
courtroom until the connection was restored, ascertained the
last instruction that Perotti had heard the court give to the jury,
and resumed the instructions from there.
At the conclusion of the one-day trial, the court memorial-
ized its impressions of the video conferencing arrangement:
The Court found the video capabilities to be ade-
quate. Mr. Perotti was able to meaningfully partici-
12 No. 14-1229
pate at trial. He was virtually present and able to
testify, present evidence, confront witnesses and
address the jury. Mr. Perotti’s facial expressions and
demeanor were clearly visible to the Judge, Jury,
Defendants, and Defendants’ Counsel. Courtroom
furnishings were moved so that Mr. Perotti could
observe the witnesses [and] opposing counsel
during questioning and the jury.
R. 213 at 4.
D. Evidence presented at trial.
Perotti was the first and principal witness to testify in
support of his case, and his testimony was consistent with the
allegations we outlined above. He testified that on or about
August 21, 2008, Kelsheimer asked him if he would be inter-
ested in a promotion to an open law clerk position and he
accepted the position. After working at the new job for two
weeks, he noticed that his pay had not increased—law clerks
were compensated at the rate of 29 cents per hour as opposed
to the 12 cents an hour that orderlies received—and that the
library job roster did not yet reflect the change in his status.
When, on September 9, he asked Kelsheimer about the discrep-
ancy, she said that “Miss Quinones told her that I would not be
changed over because of the fact that I filed too many griev-
ances against the law library.” R. 14 at 92. By way of back-
ground, Perotti testified that the Terre Haute facility had been
on lockdown for much of the Spring and Summer of 2008,
during which time prisoners were largely confined to their
cells and were unable to use the law or leisure libraries. Even
when the lockdown ended, a new meal schedule had interfered
No. 14-1229 13
with his use of the law library, which meant that he could not
work on several civil matters that he then had pending. Perotti
had filed an administrative grievance complaining of not
having access to the law library’s typewriters during that
period and Quinones, although not named in the grievance,
had been responsible for responding to that grievance in her
capacity as supervisor of the education department. (Elsewhere
in his testimony, Perotti noted he had filed a number of
grievances while at Terre Haute, one or more of which con-
cerned his work in the education department; and in her
testimony, Mosley described Perotti as “a very litigious
inmate.” R. 14 at 134.)
After his conversation with Kelsheimer, Perotti had sent an
informal communication known as a “cop-out” to associate
warden Moseley, complaining that he was being punished for
the exercise of his rights. Mosley, in turn, had asked Perotti to
see her to discuss informal resolution of the matter. According
to Perotti, Mosely instructed him to resume his work as a law
clerk and assured him that he would be paid appropriately for
the time he had already worked in the law clerk position. A
prison “change sheet” indicated that Perotti’s position was
formally revised to that of law clerk as of September 17.
Nonetheless, because Perotti, by his account, had commenced
work as a law clerk in August, he believed he had been denied
appropriate compensation for at least some period of time. By
his own estimate, the additional amount he was owed was no
more than $30, although this was not the focus of his concern,
he told the jury.
[L]ike I said, it is not really the money I am here for.
It wasn’t the money. It was the offense that it was –
14 No. 14-1229
the offense is I am in prison, and I am doing my
time. And I, and I am trying to straighten my life
out. I feel the people working here should be more
an example than a negative example, a positive
example, and I felt the fact the, that they did this,
that they retaliated against me was a violation. I
wasn’t really worried about the money. I really
wasn’t.
R. 14 at 95.
On cross-examination, Perotti agreed that he had had no
run-ins with either Kelsheimer or Quinones. He also admitted
that he had no cause to think that either of them had any
reason other than his prior grievance to harbor any animosity
toward him. Still, he insisted on re-direct that it was plausible
to believe that he had initially been denied the promotion to
the law clerk position in retaliation for his history of griev-
ances. Prison officials had a bias against the filing of com-
plaints, he told the jury. “[W]hen somebody utilizes the
administrative remedy system, quite often they get shunned,
they lose their job. They have a lot of things done against
them.” R. 14 at 103.
Mosley, who, as the prison’s associate warden for industries
and education, oversaw the education department where
Perotti was employed, recalled talking to Perotti about his cop-
out, but denied telling him he could have the job back or
ordering Kelsheimer or Quinones to promote or reinstate him
to the law clerk position. Mosley did not recall what, if any,
conversation(s) she may have had with Quinones or
Kelsheimer regarding the situation. Mosley testified that she
No. 14-1229 15
typically would have spoken about such a complaint with
Quinones and given her the opportunity to resolve it in the
first instance; but Mosley would not have unilaterally assigned
a job to a prisoner nor would she have instructed Quinones or
Kelsheimer to put a prisoner into a particular position. From
what little paperwork there was concerning Perotti’s cop-out,
Mosley assumed, in view of the change sheet indicating that
Perotti was promoted to the law clerk position as of September
17, that the situation had been resolved by Quinones without
her involvement: in particular, her note to Perotti asking him
to see her about the cop-out was sent after that date. Mosley
agreed that it was possible that she had discussed the cop-out
with Perotti prior to September 17, but she could not recall
whether in fact she had. Finally, Mosley testified that it was not
at all unusual for an inmate to file many grievances. She did
not remember any incident between Quinones and Perotti, nor
could she recall “particularly that [Quinones] would have had
any reason to retaliate against [Perotti].” R. 14 at 131.
At the conclusion of Mosley’s testimony, Perotti rested. The
defendants moved for the entry of judgment as a matter of law,
which the district court denied. The defendants then proceeded
with their case, which consisted of their own testimony.
Quinones denied having told Kelsheimer not to promote
Perotti to the law clerk position. Quinones testified that she
had no involvement with the decision whether to promote
Perotti. She indicated that instructors in the education depart-
ment handled inmate employment decisions on a rotating
basis; and she did not know who was responsible for the
decision as to Perotti. Quinones denied having retaliated
against Perotti for any reason and further denied having any
16 No. 14-1229
reason to entertain retaliatory action. She testified that it was
not uncommon for inmates to file many grievances, including
grievances related to the education department (regarding
typewriters, access to the libraries, and so forth). Responding
to such grievances was among her responsibilities as the head
of the department, and having to do so did not make her
angry, she said—it was simply part of the job. She recalled
generally that Perotti had complained about the library
schedule and access to typewriters in the law library, but she
was not named individually in his grievance, she did not
specifically recall responding to his grievance, and again
denied that she felt any anger over it. On cross-examination,
Quinones also denied having had a conversation with Perotti
in which he confronted her with Kelsheimer’s alleged explana-
tion about why he had not been promoted. In fact, she recalled
Perotti only “very vaguely” (R. 14 at 149), and did not remem-
ber having had any problems with him.
Kelsheimer, too, denied any involvement with the decision
to promote Perotti to the law clerk position or to deny him that
position. She testified that she had never made a decision to
promote an inmate from orderly to law clerk or to fire or
demote an inmate. She thought it likely that the decision to
promote Perotti to the law clerk position was made by the
instructor who had hired him as an orderly, and that instructor
was not Kelsheimer. Kelsheimer testified that she had not
discussed Perotti’s promotion with Quinones, denied that
Quinones had told her not to promote him, and denied telling
Perotti that Quinones had instructed her not to promote him.
She said she had “no clue” as to any grievances Perotti might
have filed against the education department. R. 14 at 180.
No. 14-1229 17
Kelsheimer acknowledged that she was responsible for
processing inmate pay in the education department. Looking
at the pertinent payroll records, she testified that Perotti was
promoted to the law clerk position as of September 17 and was
paid at the law clerk rate of 29 cents per hour for the entire
month of September.
In his closing statement, Perotti again emphasized that his
complaint was not focused on the small amount of money
involved in his delayed promotion, but rather about the
principle that he should not be penalized for exercising his
right to file grievances. “All I want is you to send a message to
them to let them know that they shouldn’t just treat persons
like this. Even though we are prisoners, we have Constitutional
rights.” R. 14 at 203.
The defendants’ counsel argued that only Perotti’s testi-
mony supported his contention that he had been retaliated
against. After canvassing the evidence presented at the trial,
she argued that it was not reasonable to credit Perotti’s version
of events.
After deliberations of less than an hour, the jury, as we
have noted, returned a verdict in favor of the defendants,
finding that neither Quinones nor Kelsheimer had retaliated
against Perotti.
Perotti filed a motion for a new trial in which he argued,
among other points, that the court had deprived him of a
fundamentally fair trial when it required him to appear by
video conferencing rather than in person. The district court
denied the motion, citing its original rationale for denying his
18 No. 14-1229
request for a writ of habeas corpus ad testificandum. Perotti v.
Quinones, 2014 WL 87538, at *2 (S.D. Ind. Jan. 9, 2014).
II.
Perotti makes three principal arguments on appeal. He
contends first that the district court did not objectively and
properly balance the relevant Stone factors in denying his
request for a writ of habeas corpus ad testificandum and
deciding to have him appear remotely rather than in person at
the trial. Among other things, he contends that the court did
not sufficiently recognize the limits of participating in the trial
by video and gave too much weight to the government’s
allegations as to the security risks his live participation in the
trial would present. Second, Perotti argues that once the court
decided that he should participate in the trial by video, it
should have compelled the defendants to do the same in order
to level the playing field. We review the court’s decision-
making in these respects for abuse of discretion. See Thornton v.
Snyder, 428 F.3d 690, 697 (7th Cir. 2005); Jones v. Hamelman, 869
F.2d 1023, 1030 (7th Cir. 1989). Finally, Perotti claims that he
was deprived of a fair trial by virtue of the court’s decision to
have him appear remotely rather than in person, and that
consequently the district court erred in denying his request for
a new trial. We review that ruling as well for an abuse of
discretion. E.g., Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir.
2014).
Section 2241(c)(5), as we recognized in Stone v. Morris,
supra, authorizes a district court to order that an inmate be
produced from anywhere in the United States so that he can
give testimony in a case pending before that court. 546 F.2d at
No. 14-1229 19
737; see also Barnes v. Black, 544 F.3d 807, 809 (7th Cir. 2008). But
the statute does not require a court to grant an inmate’s request
to appear in person and give testimony in support of his own
case. Stone, 546 F.2d at 737. A prisoner enjoys a constitutional
right of access to the courts, but that right is satisfied so long as
he has the opportunity to consult with counsel and to present
his case to the court. Id., at 735. The opportunity to appear
before the court in support of his claim is a matter addressed
to the court’s discretion. Id. In exercising that discretion, the
court must weigh the inmate’s interest in being present in court
to give testimony in support of his claim against the govern-
ment’s interest in maintaining his confinement. Id.; see also
Verser v. Barfield, 741 F.3d 734, 739 (7th Cir. 2013); Lemons v.
Skidmore, 985 F.2d 354, 358 n.3 (7th Cir. 1993).
Our opinion in Stone identifies the following factors that the
court should consider in weighing these competing interests:
(1) the cost and inconvenience of transporting the plaintiff to
court from his place of incarceration; (2) the potential danger
or security risk that the plaintiff would pose to the court;
(3) the substantiality of the matter at issue; (4) any need for an
early determination of the claim; (5) the possibility of postpon-
ing trial until the plaintiff is released from prison; (6) the
plaintiff’s probability of success on the merits of his claim;
(7) the integrity of the correctional system; and (8) the plain-
tiff’s interests in presenting his testimony in person rather than
by alternate means, such as by deposition. Stone added that the
last of these factors—the plaintiff’s interest in testifying in
person rather than by other means—subsumes other consider-
ations, including (a) whether the case will be tried to the bench
or to a jury; (b) whether the plaintiff has other witnesses to call
20 No. 14-1229
or is the sole person who can provide testimony consistent
with his complaint; and (c) whether the defendants themselves
plan to testify. See Moeck v. Zajackowski, 541 F.2d 177, 181
(7th Cir. 1976) (identifying similar factors); see also Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987); Jerry v. Francisco,
632 F.2d 252, 255 (3d Cir. 1980); Ballard v. Spradley, 557 F.2d 476,
480-81 (5th Cir. 1977). We have adhered to Stone’s balancing
test in subsequent cases. See Verser, 741 F.3d at 739; Thornton,
428 F.3d at 698-99; Jones, 869 F.2d at 1030.
What has most notably changed in the intervening decades
since we decided Stone is the availability of remote appearance
by video conferencing, which informs the eighth Stone
factor—the plaintiff’s interest in appearing at the trial in person
rather than by other means. Stone itself assumed that, as a
practical matter, the likely alternative to having an inmate
transported to court to testify in support of his complaint was
having his deposition testimony read aloud in court. See
546 F.2d at 734, 736; see also, e.g., Muhammad v. Warden, Balti-
more City Jail, 849 F.2d 107, 113 (4th Cir. 1988) (noting that
alternatives included presenting case by affidavit, deposition,
tape recording, videotape, or administrative record) (citing Kirk
v. United States, 589 F. Supp. 808, 810 (E.D. Va. 1984)). And that
was largely true in those days. Stone was decided in 1976, and
although two-way video telecommunications were possible in
the 1970s (AT&T debuted its commercial “Picturephone”
service in Pittsburgh in 19705), it was not until the 1990s, with
5
See Cade Metz, Tech Time Warp of the Week: AT&T Uncloaks the Picture-
phone, 1970, WIRED (Apr. 12, 2013), available at
(continued...)
No. 14-1229 21
the advent of high-capacity broadband telecommunications
and advances in computer processing and video compression
techniques, that such communications became available on a
wider scale.6 Until that time, the only other realistic options
would have been to make a video recording of the plaintiff’s
deposition and play that back in court when the time came
(which would permit the factfinder to see his face and hear his
voice, but would not enable the plaintiff to actively participate
in the trial), or to have the plaintiff appear and testify remotely
via speakerphone (which would present a voice but not a face
to the factfinder, and would enable the plaintiff to participate
in the trial in only a limited sense). Video conferencing, by
contrast, enables both the plaintiff in prison and those present
in the courtroom to simultaneously see and hear one another
in real time, and in that sense represents a great leap forward
from the alternatives to in-court appearance that were avail-
able forty years ago. See United States v. Baker, 45 F.3d 837, 843-
44 (4th Cir. 1995) (noting that video conferencing enables
incarcerated litigant to be present, at least in some sense, at
court proceeding and to confront and cross-examine witnesses
against him); Montes v. Rafalowski, 2012 WL 2395273, at *2 (N.D.
Cal. June 25, 2012) (“Despite [its acknowledged] shortcomings,
… videoconferencing nonetheless facilitates plaintiff’s mean-
ingful participation at trial: plaintiff is able to testify, present
5
(...continued)
http://www.wired.com/2013/04/tech-time-warp-picturephone/ (visited
May 26, 2015).
6
See Videoconferencing, WIKIPEDIA, http://en.wikipedia.org/wiki/
videoconferencing (visited May 26, 2015).
22 No. 14-1229
evidence, and look each juror in the eye.”); Thomas v. O’Brien,
2011 WL 5452012, at *6 (N.D.N.Y. Nov. 8, 2011) (“The use of
video conferencing technology to permit a prisoner plaintiff’s
participation in a trial is not only a potential alternative [to his
physical presence] …, but appears to present an option which
has been and continues to gain growing acceptance.”) (collect-
ing case), j. aff’d, 539 F. App’x 21 (2d Cir. 2013) (non-preceden-
tial decision); Twitty v. Ashcroft, 712 F. Supp. 2d 30, 33 (D.
Conn. 2009) (describing video conferencing as a “reasonable
alternative” to prisoner’s physical presence in court), j. aff’d,
455 F. App’x 97 (2d Cir. 2012) (non-precedential decision); Fed.
Trade Com’n v. Swedish Match N.A., Inc., 197 F.R.D. 1, 2 (D.D.C.
2000) (noting that testifying by video conferencing is essen-
tially equivalent to testifying in person and is preferable to
reading a witness’s deposition); Edwards v. Logan, 38 F. Supp.
2d 463, 467-68 (W.D. Va. 1999) (conceding that video conferenc-
ing is not totally equivalent to a prisoner’s in-person presence
at trial, but noting that it is preferable to “stark” alternative of
not allowing prisoner to participate at all).
Provisions of both Federal Rule of Civil Procedure 43 and
the Prison Litigation Reform Act of 1996 (“PLRA”) implicitly
acknowledge that technological advances have made remote
appearance and testimony a much more realistic possibility
than it was in times past. Rule 43(a) continues to embody the
presumption that witness testimony shall be taken in open
court with the witness being physically present in court; but a
provision adopted in 1996 adds that “[f]or good cause in
compelling circumstances and with appropriate safeguards,
the court may permit testimony in open court by contempora-
neous transmission from a different location.” By contrast, the
No. 14-1229 23
PLRA incorporates a presumption that, in pretrial proceedings
conducted in prisoner suits regarding conditions of confine-
ment, the prisoner will appear remotely rather than in person:
To the extent practicable, in any action brought with
respect to prison conditions in Federal court pursu-
ant to section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or
other correctional facility, pretrial proceedings in
which the prisoner’s participation is required or
permitted shall be conducted by telephone, video
conference, or other telecommunications technology
without removing the prisoner from the facility in
which the prisoner is confined.
42 U.S.C. § 1997e(f)(1).
This is not to say that appearance by video has come to be
seen as the equivalent of in-person appearance, or that it
necessarily should be. On the contrary, the advisory committee
note accompanying the 1996 amendment to Rule 43 states:
The importance of presenting live testimony in court
cannot be forgotten. The very ceremony of trial and
the presence of the factfinder may exert a powerful
force for truthtelling. The opportunity to judge the
demeanor of a witness face-to-face is accorded great
value in our tradition. Transmission cannot be
justified merely by showing that it is inconvenient
for the witness to attend the trial.
Rule 43, advisory committee note (1996 amendment). And,
notably, section 1997e(f)(1), which unlike Rule 43 is addressed
24 No. 14-1229
specifically to prisoner litigation, establishes a preference for
the remote participation of the prisoner only in the pre-trial
context. The provision is entirely silent as to trial proceedings,
and we therefore agree with Perotti that it does not alter or
displace the Stone balancing analysis as to an inmate’s appear-
ance at trial.7 But see Edwards, 38 F. Supp. 2d at 466 (asserting
that it is reasonable to conclude from section 1997e(f)(1) that
Congress, if anything, sought to encourage the use of video
conferencing and did not mean to limit the range of circum-
stances in which it may be employed). And our decision in
Thornton, which sustained the court’s decision in a prisoner suit
to have all of the witnesses, including the plaintiff inmate,
appear remotely, likewise recognized the limits of appearance
by video rather than in person:
Videoconference proceedings have their shortcom-
ings. “[V]irtual reality is rarely a substitute for actual
presence and . . . even in an age of advancing tech-
nology, watching an event on the screen remains
less than the complete equivalent of actually attend-
ing it.” United States v. Lawrence, 248 F.3d 300, 304
7
Nor does Rule 43 alter the Stone analysis. That rule does not specifically
address prisoner-initiated litigation nor other situations in which the
testimony of a prisoner is required. Securing the physical presence of an
incarcerated individual requires the issuance of a writ of habeas corpus,
which distinguishes the appearance and testimony of a prisoner from that
of most other witnesses. See Allen v. Wine, 297 F. App’x 524, 533 (7th Cir.
2008) (non-precedential decision) (acknowledging Rule 43(a)’s good-cause
requirement and noting that where incarcerated prisoners are concerned,
“[t]he use of [video conferencing] technology is permissible as a matter of
discretion”).
No. 14-1229 25
(4th Cir. 2001). “The immediacy of a living person is
lost” with video technology. Stoner v. Sowders,
997 F.2d 209, 213 (6th Cir. 1993). As the court in
Edwards v. Logan, 38 F. Supp. 2d 463 (W.D. Va. 1999),
observed, “Video conferencing … is not the same as
actual presence, and it is to be expected that the
ability to observe demeanor, central to the fact-
finding process, may be lessened in a particular case
by video conferencing. This may be particularly
detrimental where it is a party to the case who is
participating by video conferencing, since personal
impression may be a crucial factor in persuasion.” 38
F. Supp. 2d at 467.
428 F.3d at 697.
Despite its limitations, decisions to have a witness (includ-
ing an inmate) participate in a court proceeding by video
conferencing have been rejected in a variety of contexts, as we
recognized in Thornton, 428 F.3d at 697-98 (collecting cases);
and Thornton itself, which was the first published appellate
opinion addressing the use of video conferencing in the trial of
an inmate’s civil rights claim, sustained the use of video
conferencing over the inmate’s objection, id. at 698-99. Thornton
did so within the Stone framework, emphasizing that the
decision whether to have the inmate appear in person or by
video is a discretionary one, id. at 697, and citing a number of
the same factors that Stone identified as relevant to the court’s
exercise of discretion, id. at 698-99. See also Allen v. Wine, 297
F. App’x 524, 533 (7th Cir. 2008) (non-precedential decision)
(decision to have plaintiff’s inmate witnesses testify by video
26 No. 14-1229
conferencing); Jones, 869 F.2d at 1030 (decision to have plaintiff
inmate appear at trial by video conferencing); Am. Inmate
Paralegal Ass’n v. Cline, 859 F.2d 59, 62 (8th Cir. 1988) (per
curiam) (decision to have inmate participate in pretrial confer-
ence by video conferencing).
Although video conferencing presents the court with an
additional, and reasonable, option to a prisoner’s physical
presence in court to consider within the Stone framework, we
see no need at this time to alter the Stone framework itself.
Certainly video conferencing, by permitting an inmate to
appear at trial, give testimony, confront the other witnesses,
and interact with the other trial participants (and vice versa),
presents the court with a much less dire choice between having
the inmate physically present in court or not having him
present at all and presenting his testimony in only a recorded
form. But depending on the equipment and arrangements
available to the court, there will often be limits on what the
inmate can see: Perotti, for example, could not see the facial
expressions of the jurors, nor, given the placement of the
courtroom monitor and camera, could he see the judge or the
defense table when a witness was testifying. As we discuss
below, we are not convinced that these limitations deprived
Perotti of a fair trial. But they do serve to illustrate how
appearing remotely by video conferencing is not a perfect
substitute for a prisoner’s physical presence in the courtroom.
And because video conferencing facilities and capabilities will
vary from court to court and prison to prison, the extent of
such limitations will vary from case to case. A court may
therefore not simply assume that remote appearance by video
conferencing will necessarily be good enough in any case. The
No. 14-1229 27
court still must balance the prisoner’s interest in being present
physically in the courtroom and the government’s interest in
having him remain in his place of incarceration. In balancing
those competing interests, the court should still have in mind
how important credibility is to the case, and how remote
appearance may (a) limit the factfinder’s ability to evaluate the
inmate’s credibility as a witness, (b) make it more difficult for
the inmate as a party to confront and evaluate the other
witnesses and exhibits, (c) impose a logistical burden on the
inmate’s ability to interact with his counsel, the court, and
opposing counsel, and to react on the fly to unexpected
developments. Requiring a prisoner to appear remotely is not
a decision to be made lightly, as we said in Thornton. 428 F.3d
at 698, and the court must make the decision with a realistic
appreciation of how much the available technology will enable
all parties to see and hear of one another, and how the limita-
tions of video conferencing are likely to impact the presenta-
tion of the inmate’s case, the factfinder’s assessment of the
evidence, and the fundamental fairness of the trial. See generally
Sisk v. United States, 756 F.2d 497, 500 (7th Cir. 1985) (“When a
prisoner’s pro se civil action reaches the trial stage, and his
claim proves sufficiently meritorious to survive motions for
dismissal and summary judgment, a court must then take all
steps necessary to insure that the inmate receives the fair day
in court to which he is entitled.”) (internal quotation marks and
citation omitted).
In this case, Judge Magnus-Stinson carefully considered
these and the other pertinent Stone factors, and we cannot
quarrel with her decision that the government’s interest in
keeping Perotti incarcerated at the federal penitentiary in
28 No. 14-1229
Fairton, New Jersey outweighed his interest in participating in
the trial in person. The government made a showing that
transporting Perotti to Indianapolis for the trial posed both an
expense to the government as well as a security risk, given his
reported history of assaultive behavior. The trial itself pre-
sented a single, straightforward issue—whether Perotti had
initially been denied the promotion to law clerk for retaliatory
reasons—and because the alleged retaliation had, at most,
delayed rather than blocked his promotion, the injury and
damages claimed were modest: less than $30 by Perotti’s own
estimate, and perhaps less than $5 by the defendants’ account-
ing. Certainly we agree with Perotti that his theory of the case
posited a violation of his First Amendment rights, even if he
was deprived of only a small amount of wages. Yet, he was, in
the end, not deprived of the law clerk position; at worst, his
promotion was delayed for a matter of weeks. So his injury, if
any, was temporary and minor, in the scheme of things. The
trial was expected to and did require no more than a day, there
being only a handful of witnesses with knowledge of relevant
facts. And because Perotti was no longer represented by
counsel, there was no logistical difficulty posed as to whether
counsel should be present with him in the prison or in the
courtroom with the other parties to the trial and, if the latter,
how to facilitate private consultations between counsel and
Perotti. Under these circumstances, the judge was justified in
concluding that Perotti’s remote appearance by video was an
acceptable alternative to his appearance in person which,
despite its shortcomings, permitted his full participation in the
trial.
No. 14-1229 29
We wish to highlight that before the judge made this
decision, she conducted a pretrial conference with Perotti
appearing by video. Thus, rather than making assumptions or
relying on second-hand information about video conferencing,
the judge was able to both confirm that Perotti’s remote
participation was logistically possible and to assess first-hand
its efficacy as an alternative to Perotti’s in-person participation.
See also, e.g., Miranda v. Utah, 2009 WL 464526, at *1 (D. Utah
Feb. 24, 2009). The judge observed that everyone at the
conference could see and hear Perotti, and that he, in turn,
could see both the courtroom and the participants. It was,
consequently, reasonable to conclude that, at trial, the jury
would be able to assess his credibility as a witness, and that he
likewise would be able to observe and respond to the other
trial participants.
Consistent with our decision in Thornton, the judge had in
mind that Perotti’s participation by video was, by no means, a
complete substitute for his appearance, including his testi-
mony, in person. 2013 WL 4008188, at *4. The court acknowl-
edged specifically that the case was likely to present questions
of credibility for the jury to resolve, that Perotti might be the
sole witness who could provide testimony in support of the
allegations of his complaint, that he had an interest in present-
ing such testimony in person, and that “[t]he shortcomings of
video testimony are real.” Id. Nonetheless, in light of the
factors supporting the government’s opposition to producing
Perotti’s person for trial, the court judged his remote appear-
ance by video conferencing sufficient to permit Perotti’s wish
to testify and to participate in the trial and to permit the jury to
assess his demeanor and credibility. Id. Quantifying the degree
30 No. 14-1229
to which a plaintiff’s appearance by video link rather than in
person might put him at a disadvantage at trial is impossible;
deciding whether to authorize the plaintiff’s appearance will
always involve a delicate balance of intangible factors that the
district judge is best suited to make. Our role as an appellate
court is to ensure that the judge considered the appropriate
criteria and struck a reasonable balance of the competing
interests. When she has applied the proper framework and has
not omitted anything significant from her analysis, it will be
the rare case where we might find an abuse of discretion.
Perotti contends that the government exaggerated the risk
of transporting him to the trial and that the district court was
wrong to accept at face value its allegations as to the danger he
posed. The government’s opposition to Perotti’s petition for a
writ of habeas corpus ad testificandum was supported by an
affidavit from the associate warden of the federal correctional
complex at Terre Haute, where Perotti would be housed for
trial assuming his request were granted. The associate warden
had access to Perotti’s central file, which included records
generated in connection with two instances in 2012 in which
Perotti had been transported out of his correctional facility for
medical care. Those records, which were attached to the
warden’s affidavit, indicated that although Perotti was not
deemed to present an escape risk, he did have a history of
violence and assaultive behavior, including a prior assault on
correctional staff, which warranted heightened caution on the
part of those transporting him and the application of full
restraints to Perotti himself. R. 148-3. In his pro se reply
memorandum (by this time Perotti’s counsel had been released
from the case), Perotti denied that he had ever assaulted a
No. 14-1229 31
correctional officer, and averred that he had only been in-
volved in one altercation in which another prisoner was the
aggressor and Perotti had only defended himself. R. 171 at 5-6.
Perotti also points out that he was assigned to a medium-
security unit at Fairton and he was transferred to another
medium-security facility shortly after trial, facts which he
contends are inconsistent with the notion that his transport
presented any real danger. We are not privy, however, to the
criteria for assignment to a medium-unit facility, nor does the
record reveal whether the same criteria are used in assessing
the risks an inmate poses for purposes of housing versus
transporting a prisoner. Despite Perotti’s denials that he posed
any danger, the judge was entitled to give weight to the BOP’s
contemporaneous records, generated well before Perotti
sought the writ, indicating that he posed a heightened risk to
the officers transporting him, a risk which increased the cost as
well as the potential adverse consequences of transporting him
from New Jersey to Indiana. If nothing else, Perotti’s status as
an armed career criminal tended to convey some credence to
those records. We cannot say that the district judge abused her
discretion by citing this factor as an important “concern” in her
analysis. 2013 WL 4008188, at *4. See Barnes v. Black, supra,544 F.3d at 810 (“‘Writting’ prisoners to a distant court entails
cost and even danger … .”).
Perotti alternatively argues that once the court concluded
that he should appear by video rather than in person, it should
have ordered the defendants (and their counsel) to appear by
video as well, in order to eliminate any advantage they would
have by being in the jury’s presence. Cf. Montes v. Rafalowski,
supra, 2012 WL 2395273, at * 3 (directing parties, in view of
32 No. 14-1229
court’s decision to have plaintiff inmate participate in trial by
video conferencing, to consider whether other witnesses,
including percipient witnesses in particular, should also appear
by video conferencing, so as to eliminate any unfair advantage
in favor of defendants). This was not an argument that Perotti
made below, and thus it was not one to which the defendants
had an opportunity to respond or that the district judge had an
opportunity to consider. We therefore consider the argument
waived. See, e.g., Ammons-Lewis v. Metro. Water Reclamation
Dist. of Gr. Chicago, 488 F.3d 739, 744 (7th Cir. 2007).
Even if Perotti had preserved the argument, it is not clear
to us that it would have been an abuse of discretion for the
district court to reject the proposal he now puts forward. First,
this was not a case, like Thornton, in which there were many
witnesses who were “scattered all over the state” at different
correctional facilities, 428 F.3d at 698, nor was it a case in which
all or most of the parties and witnesses were either imprisoned
or employed at one correctional facility, such that it would be
both simpler and more economical to have them all (including
their attorneys, even) participate in the trial remotely. Second,
Quinones and Kelsheimer, whom Perotti sued in their individ-
ual capacities, had their own interests as defendants in appear-
ing in person (although this required them to travel from Terre
Haute to Indianapolis). Certainly the court, if it were inclined
to explore this possibility, could have asked the defendants
whether they would agree to appear remotely. But it is not
clear that they would have waived their right to appear in
person, nor is it obvious that the district court could have
compelled them to appear by video over their own objections,
when they were not incarcerated as Perotti is and required no
No. 14-1229 33
writ to secure their own presence. Cf. Price v. Johnston, 334 U.S.
266, 285-86, 68 S. Ct. 1049, 1060 (1948) (“Lawful incarceration
brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the consider-
ations underlying our penal system. Among those so limited
is the otherwise unqualified right … to parties in all the courts
of the United States to plead and manage their own causes
personally.”) (internal quotation marks and citation omitted),
overruled on other grounds by McCleskey v. Zant, 499 U.S. 467, 111
S. Ct. 1454 (1991); Hernandez v. Whiting, 881 F.2d 768, 770 (9th
Cir. 1989) (“imprisonment suspends the plaintiff’s usual right
to be personally present at judicial proceedings brought by
himself or on his behalf”). Any concern about the possibility of
stigma stemming from the fact that the inmate is the sole
participant to appear remotely may be dealt with in other
ways, as by giving the jury a cautionary instruction. Cf. Allen
v. Wine, supra, 297 F. App’x at 533 (noting that jury was
instructed to give equal consideration to video and in-person
testimony). As we have noted, Perotti has not argued that the
district court should have said anything more on the subject of
his remote participation in the trial.
We again note that the district court was meticulous in
doing everything it could to ensure that Perotti could see as
much of the proceeding and of the participants as possible. It
routinely checked to make sure he could see the venire
members during voir dire and the witnesses when they
testified. It had each courtroom witness sit in the well of the
courtroom to improve Perotti’s view of the witness, and
defense counsel stood behind the witness when questioning
her so that Perotti could at once see both the witness and
34 No. 14-1229
counsel on his monitor. There is, as the district court noted, no
question that everyone in the courtroom could see Perotti and
assess his demeanor as a witness, given the large monitor. The
only significant issue he has raised, which he voiced on several
occasions during the trial, is that he was not able to see the
facial expressions of the jurors. No doubt this was due in part,
as Perotti has argued, to the size of his own monitor, which
was much smaller than the one in court. In part it may also
have been due to the fact that there was only one camera in the
courtroom, with the result that he had a single view of the
proceeding rather than separate views (on a split screen) of the
witness, jury, judge, and so forth. Cf. Thornton, 428 F.3d at 698-
99 (noting that jury viewed a four-way screen with views of
judge, plaintiff, witnesses, and defense counsel). And although
Perotti has complained about his inability to see the entire
courtroom, including the defense table and the judge herself
(who was out of the range of the camera when it was moved
closer to the witness chair and the jury box), we view this
limitation as a more minor matter than his ability to see the
witnesses and the jury.
There may be ways in future cases to address the type of
concerns that Perotti has raised. A larger video monitor for the
inmate, and/or one presenting him with multiple views of the
courtroom participants (presumably from multiple cameras),
might make it easier for the inmate to observe the demeanor of
each participant, including the jurors. Whether such accommo-
dations are feasible will no doubt depend on the respective
resources of the court as well as the prison in which the inmate
is housed. And even a relatively sophisticated arrangement
may not permit the inmate to see everything and everyone as
No. 14-1229 35
well as he might like (although the same might well be true if
the inmate were present in court, a point we shall develop in
a moment). All we can ask is that the trial court do what it
thinks best given the options at hand. To the extent it is
possible, the court may wish to evaluate the view of the
proceedings that is being transmitted to the prisoner (on a
comparably-sized monitor), so that it can evaluate for itself the
adequacy of the prisoner’s view and make a record of its
impressions.
We are not convinced that the limitations on what Perotti
could see of the trial and its other participants prejudiced him
meaningfully, such that the district court abused its discretion
in denying his motion for a new trial. At worst, Perotti could
not make out the demeanor of the jurors, and thus was
deprived of one (potential) data point on how his testimony
and that of the other witnesses was being received by the
factfinder. But Perotti would not necessarily have been be able
to see the faces of all jurors at all times had he been physically
present in court: the facial expression of a juror who is turned
toward a witness, for example, may not be visible to someone
who is sitting at a table with counsel. And for someone like
Perotti, who was conducting his own case, it would not always
have been possible for him to be looking at the jury when he
was not on the witness stand himself. He also had to be paying
attention to the witness, what defense counsel or the judge
might have been saying, what was in an exhibit under discus-
sion, and so forth. We do not mean to dismiss Perotti’s concern.
Any court dealing with a remote appearance by a party should
be vigilant, as this judge was, to ensure that the party can see
as much of the proceeding and its participants as is logistically
36 No. 14-1229
possible. But we point out that there is no suggestion that
anything of concern transpired with the jury that Perotti was
unable to observe or deal with. His argument is simply that he
lacked that intangible input that a better view of the jurors
might have provided him.
This was a straightforward case presenting essentially one
issue to the jury and the likelihood of a modest award of
damages to Perotti in the event he prevailed. Perotti’s injury,
if any, was a minor one, as we have mentioned. Credibility was
central to the resolution of the case, but there is no question
that the jury could see and hear Perotti for purposes of
evaluating his credibility. Having Perotti participate by video
was not the equivalent of him appearing before the jury in
person, but there is no reason to think, as the district judge
herself pointed out, that his presence would have changed
things. The other witnesses gave testimony that was wholly
inconsistent with Perotti’s theory of the case but consistent
with one another’s testimony in material respects. Whatever
intangible benefit Perotti might have gained by being physi-
cally present in the courtroom—and we do not discount that
there would have been one—does not by itself overcome the
presumption that the jury’s verdict against him was valid.
Given the relatively simple nature of the case, the cost and
logistical burden of transporting Perotti to court, and the
adequacy of the available video conferencing technology, the
district court made a reasonable decision to have Perotti
appear by video rather than in person. Although Perotti
understandably would have preferred to appear in person, the
record does not support the notion that he was unduly
prejudiced.
No. 14-1229 37
III.
The district judge did not abuse her discretion in denying
Perotti’s petition for a writ of habeas corpus ad testificandum
and having him instead testify and participate in the trial by
video conferencing. The judge did everything she could do to
ensure that Perotti could see as much of the trial proceeding
and its participants as was possible, and we commend her for
the job she did. We also wish to thank Perotti’s appointed
counsel for their vigorous and effective advocacy on his behalf.
AFFIRMED