Eye on the Sparrow: The Case Against Robert Blake: Justice or Just Dishonest? - Part II

A large part of the Tual v. Blake civil appeal consists of claims of juror misconduct. In his opening brief and his response brief, M. Gerald Schwartzbach, appellate attorney for Robert Blake, named off numerous offenses of misconduct which he told the court were "unrebutted."

One of those was a claim by Juror Elias who said he couldn't hear much of the testimony. Two other jurors, Valdivia and Lucerno, said in sworn statements that Elias told them he had heard only "half" the testimony. Elias himself on at least a few occasions was captured in the court transcripts complaining of his inability to hear.

Elias also claimed to have been badgered into changing his vote to liable during deliberations and that jurors bargained with him, saying that they would award zero damages. Forman Horn told Elias he did not want a "hung jury" when Elias asked to be excused.

The California Court of Appeals justices Klein, Croskey and Aldrich examined Elias' claims, writing in their opinion, "The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a juror's obligations. …Were the rule otherwise, litigants could be deprived of the complete, thoughtful consideration of the merits of their cases to which they are constitutionally entitled." The Court then cited the U.S. Constitution, Amendments 6 and 7, and the California Constitution, Article I, as the foundation for these beliefs.

But the Court concluded that it was okay that Elias couldn't hear "some" of the testimony, since it could not determine which parts of the testimony he missed. They concluded he may have only missed testimony of "little or no practical importance," and that the Court could not establish that he missed "important" testimony.

But if Elias had missed even 10 percent of the two-month trial, he would have missed almost one week of testimony. According to Lucerno and Valdivia, Elias said he missed "half" the testimony, which would have been the equivalent of one month's worth.

How could a court ever determine what testimony was of no practical importance? Every witness that an attorney calls is called because that witness is one of the essential building blocks to proving his case. Jurors take an oath to listen to all witnesses and decide a verdict based on the evidence they heard. If Juror Elias could not hear "some," "much," "half," or even "a little" testimony, then he could not have listened to all the evidence, thus depriving Blake of the "complete, thoughtful consideration" afforded to him by the U.S. Constitution.

The Second District Court of Appeals did, however, cite a 1982 California Supreme Court case where that court indeed found that missing some testimony was not considered prejudical misconduct. The appeal of that case, Hasson v. Ford Motor Company, was in part based on a claim that one juror was reading a novel and others were playing crosswords during testimony.

What is even more interesting is that the Court chose to use a 1982 case instead of their own 2008 case, Ovando v. County of Los Angeles. In the Ovando case, published just three days after Schwartzbach's oral argument, the justices described the standards for which they judged misconduct. Apparently they didn't feel the need to apply their own standards to Blake.

The similarities between the Blake case and Hasson are quite remarkable. Hasson also started in the Second District Court of Appeals, involved an excessive damage award, and additional claims of misconduct including one juror who concealed information in voir dire and another who made biased statements before deliberations. And, just as in Blake, the responding party turned over counter-declarations from the jurors denying any misconduct but did not rebut allegations made about the reader and the crossworder.

The Appeals Court in the Blake case compared the situation of Juror Elias with those of the Hasson jurors who were pursuing recreational activities in court. The Appellate Court found that the behavior of those jurors constituted prejudical misconduct and ordered a new trial. Their decision read as follows:

"A crossword-puzzle working juror attempting to ascertain the proper word has a closed mind, or at a minimum, an interrupted attention span. Similarly a novel-reading juror cannot concentrate on both the flow of the plot and the flow of the testimony. Such inattention implies prejudgment of the case, which is misconduct.

Nothing admissible appears in the record herein to rebut the presumption of prejudice which arises from such juror misconduct. The inescapable conclusion is that the parties did not have 12 unbiased, impartial jurors."

But this is not where the story ended in the Hasson appeal.

Hasson, the plaintiff in the case, took the appeal to the California Supreme Court in an effort to reverse the Appellate Court's declaration of a mistrial. Seven justices heard and reviewed the plaintiff's argument.

In regard to misconduct, six justices, the majority opinion, found that although the defense claimed that the jurors were reading and doing crosswords, there was no point identified in the record when these jurors were seen doing those acts. Further, the justices pointed out that the matter was never brought to the attention of the trial court judge, the bailiff, the court reporter, or any of the attorneys present.

Although Hasson obtained declarations from the accused jurors denying the alleged activities, the court found that the Ford's claims of those activities were "unrebutted."

The Supreme Court said that it could not infer solely from the jurors' activities that they had prejudged the outcome of the case to the detriment of the defendant. So the Court examined the evidence against Ford and ruled that there was "overwhelming" proof of liability and that "no substantial actual prejudice resulted from the jurors' activities."

The Appeals Court in Blake appears to have relied heavily on Hasson to deny charges of prejudical misconduct in Elias' case. On the surface it appears as if the standard set in Hasson can be applied. However, Elias had a physical handicap, a "silent" handicap which could not be seen by others. So it would be impossible to determine what Elias heard and didn't hear. Indeed, Elias couldn't say what he didn't hear because he didn't hear it. Nor could the other jurors, the judge, the attorneys, the bailiff or the court reporter.

This wasn't a case of jurors reporting misconduct on other jurors. This was Juror Elias, freely admitting he didn’t hear. The corroboration of this misconduct lies with the accused juror himself.

Although the Court applied the Hasson inattentiveness test to Elias' situation, it did not apply the other standard on which Hasson was based – that of "overwhelming" evidence. It was that standard that minimized the effect of the Hasson juror misconduct. In other words, the misconduct was inconsequential because the evidence was overwhelming. The Blake Appeals court carefully avoided stating the evidence in Blake was overwhelming, and made only a veiled reference to it in regard to Hasson.

The Appellate Court knew it had no grounds for claiming overwhelming evidence. The civil verdict was not unanimous, and Blake had been acquitted in criminal court. They also knew that if they had claimed overwhelming evidence, it would strengthen Blake's case if Schwartzbach chose to petition the California Supreme Court for review.

It would also mean they would have to explain themselves.

The Court in its written opinion described some of the key witness testimony, carefully documenting mostly the plaintiff's viewpoint. There was no mention of Brian Allan Fiebelkorn's or Dianne Mattson's testimony, or that of the tape recording secretly made by lead detective Ronald Ito. What the Court didn't write, they knew they would not have to explain. And they also knew that this would be the introduction to the case the Supreme Court would see if they were considering a petition. It appears to be very clever sleight of hand.

In Hasson, one of the reviewing Supreme Court justices dissented from the majority opinion. In his dissenting opinion, Justice Richardson said the following about the Hasson decision:

"The case presents an important issue involving the integrity of our jury system, namely, whether a verdict may stand despite proof that sitting jurors were permitted, during the presentation of evidence, to read books or work crossword puzzles.

The present majority ignores this long established presumption of prejudice by purporting to rebut the presumption because defendant has failed to show actual prejudice! However, as the majority itself has observed, the presumption of prejudice was intended specifically to assist those litigants "who are unable to establish by a preponderance of the evidence that actual prejudice occurred." Thus, the majority casts the burden of showing a "substantial likelihood" of actual prejudice upon the very party whose inability to prove such prejudice created the presumption in its favor. This reasoning cannot be the law and it surely has not been our previous position.

Similarly, in the case before us when jury misconduct is established, the burden is upon the plaintiff to demonstrate that no prejudice resulted from the misconduct. It is not the task of defendant, who has the benefit of the presumption, to show prejudice.

Nor is the misconduct trivial or inconsequential. A defendant's right to a fair jury trial in civil litigation is of both federal and state constitutional significance. We should not countenance such a complete erosion of a constitutional command.

Moreover, my conclusion is not changed by defendant's inability to identify and match the particular periods of the jurors' distraction with the specific evidentiary presentation by one party or the other. That, of course, is not a critical point because oral or documentary evidence favorable to a defendant may be received during a plaintiff's presentation, and vice versa.

How, in fairness, is it possible for defendant which did not know of the misconduct, nor did anyone else outside of the jury box apparently, to prove that the jury's inattention injured it, either as to the liability or damage issues in this case? The jury's misconduct here was real, it was substantial and it is admitted. It is not an answer to say that because no one saw the misconduct, not judge, counsel, bailiffs or anyone else, therefore it must not have occurred.

Thus, I am unable to square the degree of admitted jury misconduct in this record with what I have always believed was the sworn duty of a juror to "well and truly try the matter in issue." This duty surely entails giving undivided attention to the evidence and court proceedings whether the trial lasts three hours, three weeks or three months. Litigants are entitled to no less."