Only through Law . . .
The next day, it was that same juror 1’s turn to play the heavy, though he brought a civility to the role that my act had lacked. Finally, though, when he realized he was getting nowhere, he pulled out copies of a letter he had written to the judge and passed them around:
As a juror on this John’s Manville Asbestos Trust vs. Tobacco Companies case, I would like to lodge a complaint against certain jurors who “misled” the court (including both plaintiff and defense councils) by lying in their statements that they could render a “fair and Impartial” verdict and that they could follow the “Rules and or Charges” as set by Your Honor.
These jurors are uncooperative in that:
| 1. | They will not present to us a list of claims substantiating their opinions so that they can be debated, |
| 2. | They will not answer specific charges to the affirmative or negative, |
| 3. | Will not request specific transcripts to clarify the questions, |
| 4. | Are not interested in accepting statements made by individuals of the Trust (will not listen to the words if they are contradictory to their feelings), |
| 5. | Will not analyze charts or demonstratives to explain their views, and |
| 6. | Are constantly throwing “What ifs” rather than accepting the evidence as presented to us. |
Thus, these jurors, because of their “Deception and Misleading Representation” to the court, are causing these deliberations to continue on without meaning or without a chance of arriving at a unanimous decision.
I respectfully request that Your Honor intervene into this dilemma so as to avoid any regrettable acts.
He said he was going to send the letter in to the judge, for he now was sure that the two were not going to cooperate in helping us move to the required unanimous verdict.
They said, “Go ahead.” He handed his letter to the marshal. The judge responded that he could not intervene in jury deliberations.
Later, juror 7 took a turn playing the bad-guy role, spicing his anger with pleading, wheedling. Juror 2, when it came to him, managed, even as he shouted, to weave in the self-deprecating humor we had come to associate with him. Neither got any real response.
Once, when one of the dissenters finally said something, claiming that “The tobacco companies should have done something,” I wrote, in big block letters on a pad on an easel: “Silence Not A Crime.”
But that did not help.
On the fifth and final day of deliberation, juror 1 came in with another letter he wanted to send to the judge:
Many of the jurors are trying diligently to resolve differences, disputes, or interpretations of the charges. We are experiencing difficulties with understanding (explaining) such words as: justifiable reliance, deception, ordinary intelligence and preponderance of evidence….
There is difficulty in accepting that, under our system, an individual is innocent until proven guilty beyond a reasonable doubt.
We would also request if you can clarify to the jury if:
| 1. | “Silence’ or “Inaction” can be grounds to cause an individual to be found guilty |
| 2. | Can “Silence” or “Inaction” be relied upon by an individual to cause that individual into performing a harmful act and then stating that the “Silence” or “Inaction” are the cause of the harm inflicted on the individual? |
We have attempted in many ways to review and debate all charges. Most recently a stand was taken to first assume guilt and asked that the plaintiff’s case be presented, point by point. In most jurors thoughts, the preponderance of evidence for the defense, far outweighs the evidence for the plaintiff. But if there are jurors who feel that even one piece of evidence brought on the plaintiff’s side is enough to find guilt, then this jury will never arrive at a unanimous decision!
In addition, I feel that some jurors do not care how long the deliberations take. Getting paid by their employer for not having to work “Is A Good Thing.” It might be helpful if we are held longer and or asked to arrive earlier so that this Jury Duty is not easier then going to work! Although this would harm those individuals who are really attempting to resolve this case.
The final explosion came from none of us four, but from juror 12, who had never before raised his voice. It happened like this:
Juror 2, at that moment the heavy, was pacing and waving his arms, expostulating while juror 7 leaned over and whispered in juror 8’s ear, entreating that she listen, that she try to follow the logic of the argument we were trying to present. Suddenly, juror 8 pulled away and shouted at juror 2.
“You’re only angry because I’m a woman and won’t do as you say.”
Stunned silence. And, I thought, the end. If their arguments were headed that way, there was no sense in continuing.
“All right,” I said, silencing juror 2 who, after gaping at juror 8 for a moment, was starting to respond to her in kind. I grabbed my pad and pen and wrote as I spoke, “that’s enough. Let’s send it in.” I read what I had been writing: “We cannot reach unanimity.”
While I was speaking, juror 12, suddenly red-faced, shouted, “If this keeps up, somebody is going to kill someone.”
Juror 8 turned and screamed at him, “Don’t you threaten me. Nobody threatens me.”
“I didn’t threaten you.” Juror 12 thrust his head forward, an angry bulldog. Juror 8, seeming to ignore him, started writing.
“I heard what you said.” She folded her paper, opened the door, and handed it to the marshal outside.
“Do we all agree with this?” I held up my paper. For the first time, everyone nodded. I relayed my paper, too, to the marshal.
Tom Hays, writing for the Associated Press (
"I have an obligation to jurors to protect them,'' U.S. District Judge Jack Weinstein said.
The last of three notes sent to Weinstein on the fifth day of deliberations read, "Juror has made threat against other juror to kill" if they have to be "here much longer.''
Juror [8]—one of two holdouts in a 10-2 deadlock favoring the tobacco industry—told reporters she wrote the third note after a male juror threatened that if deliberations lasted another day, "one of us would be killed." Hayes (Full quote no longer available in abridged online version).
That we could not reach a verdict indicates to me the power of the popular vilification of tobacco over our legal system. In a system of supposed equal justice, tobacco companies are not equals, are no longer judged on what they have done, but on who they are. Others are deliberately taking advantage of that, for their own purposes. And, however noble those purposes may be, this is wrong.
It was never the tobacco companies that made cigarette smoking such a rage amongst Americans. The product satisfied — and still satisfies, for some — a perceived need. The tobacco companies never created that need, only fed off of it. That they panicked, and reacted extremely poorly (after promising to act so well), when the health problems of their products first arose to scientific perception is no different from what dozens of other industries have done in similar circumstances.
In many ways, tobacco is no more a ‘rogue industry,’ as it has been called, than is, say, the aluminum siding industry. Has it been discovered that tobacco companies did bad things? Sure. The same can be said of any company—or any individual—that comes under scrutiny as close as that faced by tobacco. Did the tobacco industry commit criminal acts? Sure. So has every company, and every individual at one time or another. Did the tobacco industry’s crimes amount to racketeering? Certainly not according to the standards set by Judge Weinstein that the Trust attempted to meet.
Perhaps it did, however, by legal standards that could be presented in a different lawsuit. As I have said, we weren’t asked to consider the fraud connected with “light” and “low tar.”
Should the tobacco companies pay for the damage caused by their product? Absolutely, I would have said when this case began. Certainly, the companies have a moral obligation to the users of their products, and certainly they have failed to live up to that obligation. But should such an obligation be enforced by law? About that, I have my doubts — but could be convinced either way. That’s why I am glad this new RICO case concerning “light” and “low tar” is going forward.
The issue surrounding tobacco touches on everything from the role of government in regulating commerce to questions of business ethics, to debates over the concept of national health care, to the role courts should or shouldn’t play in shaping our evolving social compact. Simply defining tobacco companies as the devils in this national tragedy will never lead to real solutions to the problems related, both directly and indirectly, to tobacco concerns. The same is true in a myriad of situations where the easy was is to find a villain and heap the blame there, when the real problem is much more complex, and the real blame lies across a much broader segment of our society. Yet the tobacco companies have acted irresponsibly, at best, and have hurt millions of lives.
The Manville Trust could have tried its suit again, given the mistrial. It has not. Other cases have been brought, however, and the tobacco companies have managed to come out of them without too much damage. There are more, including the RICO case that Judge Weinstein has just let go forward. If a verdict is reached against the tobacco companies, the industry may well capitulate and settle others.
I want to see the tobacco companies brought down—but only through law, not in spite of it, as two of our jurors seemed to believe should happen.
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