Foreman and the Holdout
Among the points he had made to us, and that I should have reiterated, were these:
 | It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case. |
| Statements and arguments of counsel are not evidence in the case, nor is anything I say. |
| The law does not permit you to be governed by sympathy, prejudice or public opinion. |
| You must disregard any reports on the subject matter of this suit that you have read, seen or heard through the newspapers or otherwise, or other media, or other information about tobacco or asbestos that you have learned outside the courtroom. |
| In evaluating the evidence, you can rely on your own recollection or notes or ask to see any physical evidence introduced or ask to have any portions of any witness’s testimony read back to you. |
| Your verdict must be unanimous on each question on the verdict sheet. |
| You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. |
| If it becomes necessary during your deliberations to communicate with the Court, you may send a note by a bailiff, signed by your foreperson or by one or more members of the jury. |
Though he did not mention the concept of jury nullification specifically, aside from saying that we must follow the law, the judge did instruct us that “If you have any notion of your own as to what the law is or should be, disregard it.” Knowing just a little about jury nullification, I wanted to steer away from it. It seemed to me that the only safe course in this case was for us to concentrate on the law, not to decide that we could take matters into our own hands and ignore the law.
We were dealing with a highly charged issue where emotions can lead us more often than sense does. If we did not anchor our discussions in evidence and law, there was no way we were ever going to get to a verdict. This I was sure of.
Careful not to try to impose my own new views on my fellow jurors, I started our deliberations by commenting that, if we could agree that tobacco had not “caused injury to the Trust’s business or property” (element one), that the Trust had not “suffered actual injury as a result of the challenged acts or practices” (two), or, as put in the third element, the Trust had not “sustained pecuniary loss,” then we could find for the defendants and ignore everything else, saving a great deal of time. Everyone but the one reading on her own nodded. If we could agree that damage had occurred, on the other hand, I continued, then we would be well on our way to reaching a point where we could decide against the tobacco companies.
All of the jurors but the one willingly accepted this as a prudent method, especially once the carts of evidence were wheeled in and we were faced with the sheer volume of information we would have to plow through. That one still insisted that she be allowed to reread the charge alone.
We discussed our course for a while, then she said she would read on her own no matter what we said, and join in our group discussion later. This, it turned out, was a mistake; a jury should always be conducting its activities together.
“Can anyone think of any way the Trust was directly hurt by the tobacco companies — and remember that to hurt the Trust means to hurt it financially.”
We discussed possible ways this could have happened for a time, even trying to suppose that damage to claimants could become financial damage to the Trust. But, no, we determined, even if more claimants and those more ill were coming to the Trust, it had never been established that the Trust was paying for tobacco’s share.
We discussed ways the Trust could have been misled by the tobacco companies. Was there information the tobacco companies had, but withheld? No, we established, the Trust had access to as accurate medical data as the tobacco companies.
By the end of that first day of deliberations, ten of us, to my surprise, had come to the conclusion that damage to the Trust had not been established. I discovered that most of the jurors, as I had, had made their minds up as the judge was reading the charge. Like me, they had decided that the Trust had not established its case. The eleventh juror said she was leaning our way. Only the one who had insisted on reading on her own, who had absented herself from discussion, had not given an opinion. She said she would not until after the weekend. We adjourned, feeling confident that we would be able to come to a verdict quite soon and quite painlessly.
On Monday, when we rejoined our discussion, the eleventh juror, who rode the train back and forth with juror 8, the one who had been reading, said she was less sure than she had been, and would like to read the charge by herself, too. The two of them had already been reading, we discovered, since
The rest of us, having nothing to do, sent a note to the judge, asking if we could either have a separate room for the readers, or could take the day off, leaving the two to examine the charge at their leisure. The majority of us did not feel comfortable intruding on the desire of the two to study. We wanted them to talk, to tell us how they felt, but only when they were ready.
The judge sent a note back, telling us we had to stay together and work together.
After lunch, the two seemed ready to talk. Tell us your views, I asked them. If they are different from the rest of ours, convince us that you are right.
“They have to be guilty,” said one.
“There was fraud,” said the other.
“And what about the destroyed documents?” asked the first.
Even if there were fraud, did it harm the Trust? And, as to the documents destroyed, would they have provided the Trust with any information it did not have?
They looked at us and, for a time, seemed to be listening, but soon they went back to studying their copies of the charge. Rarely did they look up after that, even as the rest of us talked to them and around them. They paged back and forth, then back and forth again, heads down.
Every once in a while, one or another of us would draw one of them out and try to get a discussion going. We explained that the burden of proof lay with the plaintiff, and that, were we to convict, we would have to find that proof.
“Show it to us,” we pleaded. “Help us find it.” I went through all of the letters in evidence from tobacco companies to consumers. Others tried to help them in other ways. Yet all the two jurors did was continue paging back and forth through the charge.
We all knew why they didn’t respond. They couldn’t. The evidence they believed in was not there. They, however, could not give up their position. The tobacco companies were bad. To acquit them, then, would be a travesty. Unable to articulate — let alone find — support for their position, they were reduced to paging back and forth through the charge, and back and forth again.
They never even brought up the deception the tobacco companies had used, the deception that their “smoking machines” somehow reflected the way humans smoke.
Our attempts to engage them went on for four extremely frustrating days. We continued to try to get them to debate. But they were not going to agree to acquit the tobacco companies, and that was that.
Help us, we pleaded. Take us through your argument.
“There was fraud,” they said. “And they sold cigarettes.” “But,” I responded, “the charge says, ‘You may not hold any defendant liable merely for the manufacture and sale of cigarettes, regardless of any personal feelings you have about cigarettes.’”
“But they destroyed documents.”
“How, then, did that destruction affect the Trust?”
No answer.
Because they were so engrossed in the charge, we decided to use it, too, trying to get them to discuss things with us.
We talked about the meanings of “racketeering activity,” of “enterprise,” and I read from the charge:
An enterprise is defined as a group of people, entitles or corporations who are associated together for a common purpose in a course of conduct.
This group does not have to be a separate legally recognized entity, such as a partnership or corporation. It may be organized for a legitimate and lawful purpose, or it may be organized for an unlawful purpose.
The Trust alleges that there was one enterprise in this case consisting of, at various times,
| (a) | The Council for Tobacco Research (CTR) formerly known as the Tobacco Industry Research Committee (TLRC). |
| (b) | The Tobacco Institute. |
| (c) | All of the defendants — Brown & Williamson Tobacco Corporation, American Tobacco Company, Liggett Group, Inc., Lorillard Tobacco Company, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, and a British American Tobacco holding corporation of Brown and Williamson and other tobacco companies…. |
Juror 8, the one who had been recalcitrant from the start, then said something like, “It says, then, that only two things have to be proven, not all of those things, like you said.”
“No, there have to be two acts of racketeering activity — in addition to the other things.”
“I don’t think that’s what it says.” She showed us another passage:
To prove a pattern of racketeering activity, the Trust must prove, by a preponderance of the evidence, that at least two of the alleged racketeering acts were connected by a common scheme, plan or motive.
You must also find that the racketeering acts amount to, or pose a threat of, “continuing fraudulent activity.”
There must be at least two specific acts of mail or wire fraud which you unanimously find by a preponderance of the evidence were committed by the particular defendant in order to satisfy this element.
The Trust alleges that the defendants committed mail fraud and wire fraud by making misrepresentations directly and indirectly to workers who smoked and were exposed to asbestos and have made or will make claims against the Trust.
“Don’t you understand?” I asked. “That’s just a part of the whole, a part of what has to be proven.”
“It says only two is enough.”
“Enough for that part. But that is only part.”
“That’s not what it says,” she insisted. “It says two is enough.”
But that IS what it says, and we showed her where. She did not respond, but went back again to paging through the charge. I began to think that she was willfully playing dumb, but put that idea out of my mind.
“Please,” I said, “show us the proof that these charges are true. Let us discuss this.” I then made my offer to read the letters, to try to find two written to asbestos workers.
As I looked through the evidence for them, the two dissenting jurors paged further into the charge, or back, and, once again, said nothing. Or said, “But there was fraud.” or “But they destroyed documents.”
Someone read another passage from the charge to them:
A representation or statement is “fraudulent” if it was known to be false when made and if it was made with the intention to deceive.
“Show us the fraud, give us specific examples,” this juror pleaded. But the two just turned their pages and kept their heads down. “There was fraud. We know it.”
And they were right, by my estimation. But it had not been fraud that affected the Trust in a material way.
In another try, someone read:
“Help the Trust, please, help us see the proof that the Trust has provided. Tell us where to find it.”
Nothing. Just more paging.
As we continued, discussion devolved upon a tag team comprised of four, jurors 1, 2, 7 and me, each alternating as the bad guy, the best friend, the impartial adjudicator and the teacher, trying to get the two dissenters to present their case, to do anything at all but page back and forth through the charge. The two holdouts, jurors 5 and 8, might scowl, or nod and follow for a time, as one or another of us tried a new role on them. Eventually, though, each would bow her head and begin flipping back and forth once more through the pages before them, as though these could save them, as though a revelation could arise through the words, bringing them the message that could, by itself, justify their position.
Though they joined in from time to time, the other six jurors let the tag team bear, or bring, the brunt of the action. A couple of them were clearly getting too frustrated to trust themselves in trying to draw forth discussion.
I had made my debut in the devil's role on the second day of deliberation, exploding when I first sensed us falling into the repetitions that would lead to our downfall. My hope was to shock the holdouts into recognition that they either had to give in or begin trying to convince the rest of us. That they had to start seeking evidence showing the defendants guilty. The burden was on them, as surrogates for the plaintiff, to present the preponderance needed for conviction.
All I managed was to bother those on my side, for I’d yelled, “You’re playing games; you’re f****** with us by just sitting there.” Later, juror 1 told me he understood what I had been trying to do but was disturbed by my language. Others took me aside, too.