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Sunday, July 12, 2009

Courts - Mistrial in Florida caused by: (1) plainitff's motion, (2) reporter's story, (3) juror misconduct, (4) none of the above

Here is some information about a mistrial in Florida:

1. On June 27th, Frank Cerabino of the Palm Beach Post reported in a story that began:

The holes in the soles of a lawyer's shoes have become a legal issue during a civil trial in the Palm Beach County Courthouse.

Defense lawyer Michael Robb has been showing up in Circuit Judge Donald Hafele's courtroom with a pair of black tasseled Cole Haan loafers that have visible holes in both soles.

"I've had pretty good luck with these shoes," Robb said. "They're comfortable and I wear them."

But they bothered the opposing lawyer, Bill Bone, who characterized the shoes in a court motion as part of Robb's trial strategy.

"Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles," Bone wrote. "Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury who are intently watching all counsel and the Court at that moment."

2. On July 4th the same reporter wrote this column. Here are just some quotes from the reporter, explaining that he was not the blame for the mistrial:
I'm going to reconstruct the events that led to a mistrial of a Palm Beach County civil case this past week, a case in which a $2.2 million verdict in a personal injury trial was set aside.

You may have read a story about the mistrial on Thursday titled "Judge calls mistrial after column spurs discussion of case."

The column in question was the one I wrote in last Sunday's newspaper. Normally, I don't engage in backstage tours of the twin worlds of journalism and the judicial system. But I'm making an exception here, because I find the exploration of what happened here fascinating, troubling and ultimately enlightening in ways that far outstrip what started out as a humor column.

On the Friday before last, I received an e-mail from a casual acquaintance, a non-lawyer who was writing to me from another state.

"Someone forwarded this to me ..." he wrote, "and I thought it would be right up your alley."

Attached to the e-mail was a two-page motion filed by West Palm Beach personal injury lawyer Bill Bone, who was trying to get a judge to order the opposing lawyer in his trial, Michael Robb, to stop wearing shoes with holes in their soles. * * *

I spoke to Robb, who found it all very funny, and supplied me with a slew of quotable lines about his beloved 12-year-old pair of Cole Haan loafers. He even offered to spell Cole Haan for me, and at the end of the conversation asked me if I had enough fodder for my column.

More than enough. I then called Bone, whose reaction couldn't have been more opposite.

He immediately told me that if I wrote about the case, there would be a mistrial, and that it is unethical for me to write about an ongoing case, adding that he wondered how I could go to sleep at night and that this is why newspapers are in financial trouble.

After his blustery monologue, he ordered me not to use anybody's name in my column, and by the way he was saying it, I think he really thought he had the power to do that.

I explained that I was writing about a public document filed and discussed in open court, and that he doesn't operate in a star chamber, where public knowledge of what goes on in court is embargoed until all legal appeals are exhausted. And that he doesn't have to talk to me if he doesn't want to, but his shoe battle with the other lawyer was going to be my column for Sunday.

About 10 minutes after talking to Bone, Robb called me from North Carolina. He wasn't jokey anymore. He told me he didn't think it was a good idea to run my column on Sunday. I told him I was.

His office later that afternoon faxed me a letter.

"We are days away from a verdict and again I am asking that you do not run the story until a verdict has been rendered in this case," he wrote. * * *

I need to pause here to note that after years of covering both state and federal court, in matters far more serious than this, I had never been told that I shouldn't write about an ongoing case until a verdict had been reached.

Why? Because the court's are open to the public, and with rare exceptions, what goes on in the courthouse is not subject to whims of trial participants who may or may not want anybody looking over their shoulders.

I also called the judge in the case, Palm Beach County Circuit Judge Donald Hafele, to tell him about the upcoming column. By then, it was about 3 p.m. on Friday. The phone call went to the answering machine of his judicial assistant. I identified myself on the message, and told her that I was writing about a case in trial with the judge, leaving my phone number for a call back.

I didn't hear back from the judge. But I exchanged a couple of e-mails with Bone on Saturday, the day before the column ran. He was far more conciliatory and reasonable this time.

"It is my belief that innocent people could be hurt in the name of humor and entertainment when any story that doesn't depend upon timing like this story will have the same entertainment value if told next week," he wrote.

Fearing that a juror would read the column and cause a mistrial, he added: "Could you please put a warning at the top of the article that says something like: 'This is an actual legal case in progress. If you are sitting on a Palm Beach County Jury, don't read my column today.'"

Did I have to write the column? No. Would a warning at the top of my column stop a juror from reading it? Maybe.

But from my perspective, holding the column or putting a warning at the top of it went far beyond my responsibilities here. * * *

Well, maybe one of the jurors had already read it? Maybe. But what caused the mistrial was that on Monday morning, the jurors were allowed to mingle with each other before the start of court, and one of them brought in my column and read it to the others while they were left to their own devices in the jury room.

They discussed "the case" before deliberating on a verdict. Judge Hafele allowed them to reach an advisory verdict, but at the urging of one of the lawyers, he declared a mistrial.

3. The motion itself, titled "Plaintiff's motion to compel defense counsel to wear appropriate shoes at trial" is available at the end of this July 9th Above the Law entry.

Posted by Marcia Oddi on July 12, 2009 11:17 AM
Posted to Courts in general