Wednesday, February 18, 2009
A Trial That Will Live In Infamy?: Washington Case Reveals That The State Has No Version Of Rule 606(b)
A Washington judge should be able to hear about racist statements that jurors allegedly made during a medical malpractice trial because Washington state does not have a state counterpart to Federal Rule of Evidence 606(b).
An article on the case in which the racist statements were allegedly made doesn't provide much in the way of details, but it appears that Darlene and Bill Turner sued Dr. Nathan P. Stime, a Spokane general practitioner, whom they claimed committed medical malpractice in connection with a cancer diagnosis. The jury's verdict went against the Turners, and their attorney, Mark D. Kamitomo, claims that the verdict was not based upon the evidence presented at trial, but upon the jury's racism, and has filed a motion for a new trial. What separates this case from many of the cases I have discussed on this blog (such as here, here, here, here, here, and here) is that the alleged racism was directed against Kamitomo himself and not his clients.
After the verdict was entered, one juror came forward and alleged that
five jurors — three women and two men — had disparaged Kamitomo in closed-door jury proceedings, calling him "Mr. Kamikaze," "Mr. Miyashi" and "Mr. Miyagi," a character in the movie "The Karate Kid."
Another juror corroborated this claim and also indicated in an affidavit that
One juror remarked on the coincidence that their verdict would be read on Pearl Harbor Day - saying that given the date, another juror’s racially insulting remark about Kamitomo was "almost appropriate" (In an interesting/sad twist, Kamitomo's father was 8 years old when his family was seized in Vancouver, B.C., and relocated to an internment camp at Lemon Creek, B.C., after the Japanese attacks on Pearl Harbor).
So, as noted, the was not the typical juror racial bias case, and it likely won't have the typical result. As I have noted on this blog,
"Rule[606(b)] has repeatedly been held to preclude a juror from testifying, in support of a motion for a new trial, that juror conduct during deliberations suggests the verdict was tainted by racial bias." Victor Gold, Juror Competency to Testify that a Verdict was the Product of Racial Bias, 9 ST. John's J. Legal Comment.125 (1993).
Washington, however, does not have a version of Federal Rule of Evidence 606(b). According to the Court of Appeals of Washington, Division 2, in Marvik v. Winkelman, 109 P.3d 47, 50 (Wash.App. Div. 2 2005),
Although many jurisdictions do not allow a juror to impeach a verdict, our State allows juror affidavits or declarations to impeach a verdict as long as the information provided does not relate to a factor that "inheres in the verdict...." Generally, a fact "inheres in the verdict" if it "relates to the effect of evidence or events upon the mind of a juror, or is directly associated with the juror's reasons, intent, motive, or belief, when reaching the verdict."
Thus, the jurors should be able to impeach their verdict through testimony concerning the racist statements but not by testifying about the effect of any of those statements on their verdict.
(Hat tip to Professor Ann Murphy, who posted the story on the Evidence Professor Listserv).