Clem Glynn and I genuinely had no problem with Judge Donner’s actions, and we certainly weren’t worried about any impropriety, but we knew that once there was a verdict, each side would be looking for whatever it could find for an appeal, and something like this could easily mushroom into a big issue if not handled properly now.
We didn’t want the jury to go home, and for us to later have to deal with appellate problems. Nobody wanted that outcome, because that meant this trial would have been a big waste of time and money.
Glynn made a good point when he said the jury could get more sensitive and nervous as time went on, so it was important for all subsequent communication with the jury to be conducted in the presence of counsel so as to avoid any additional issues.
Another unexpected situation arose that morning as well. Greg Gaebe brought up what he thought was a press release handed to him that morning by DuPont’s people. Doug Chumbley quickly chimed in and corrected Gaebe, stating that it was actually a transcript of a BBC Radio broadcast reporting that, among other things, there was a lot of screaming and yelling and a five-to-one deadlock in the case—in the plaintiff’s favor. It was amazing and impressive that DuPont had a transcript of a radio broadcast from Scotland that had occurred just hours before.
Gaebe was extremely concerned that while the jury was out, someone had gone to the press. He was worried that a party associated with the case was talking.
Sometimes overhearing the screaming and yelling coming from a heated jury deliberation is unavoidable. In those types of situations, I actually don’t want to hear what they’re saying. It’s all too subjective. But while listening might not be right, it also isn’t wrong, and it certainly isn’t tantamount to communicating.
As Gaebe spoke, however, it was clear that all the lawyers—myself included—shared the same concern. That is, until Doug Chumbley said, “You’re mentioned in here, Jim.”
That was news to me.
I was shocked and angry at the thought, let alone the insinuation, that I would have talked to anyone, especially the media, during jury deliberations. I hadn’t spoken to anyone, and I made damn sure everyone in that courtroom knew it.
Glynn stepped in and said that the reference to the 5-1 split was a particular cause for concern, because even if a lawyer overheard a lot of arguing, he would have a hard time deciphering a specific breakdown or split among the jury. One possible explanation for such a specific communication was that a juror had a connection to the outside world.
Chumbley then noted that the interview had been with Peter Attenborough, who was a client of a colleague of mine in London working on the Scottish cases.
In the interview, Attenborough speculated on the jury split by saying, “It appears … .”
He wasn’t being absolute. He was taking a shot in the dark. While my association with Attenborough, slight as it was, didn’t look good, I certainly had nothing to do with that interview or his guessing game. Thankfully, Judge Donner saw it that way, too. She didn’t find an appellate issue, because in reality there hadn’t been any communication. If someone from the jury were communicating, there would have been a problem. If someone from counsel were listening, well, shame on them.
Glynn attempted to introduce the three-page transcript of the radio interview into evidence, but Judge Donner wasn’t having it any more than she would have her personal grocery list being added in. She allowed the document for identification, and that was it.
Finally, Gaebe brought up a report that had appeared on the evening news the night before indicating that 40 other children born with microphthalmia were either in the process of making claims or actually making claims as a result of Benlate use. Gaebe wanted to make sure the judge would ask the jury when the verdict was returned if they saw this report, which she agreed to do.
In my next post, I continue recounting the suspenseful deliberation process. This post is adapted from my book, Blindsided, which recounts in great detail this landmark case, and also provides a look at how the legal system works in certain cases.