Dynamite Charge might Blow Up in Judge's Face

A Tennessee jury was having trouble reaching a verdict in a major medical malpractice case. The doctor, Michael Goodman, was being sued for $12 million. His patient, Kristen Freeman, went into cardiac arrest, following a colonoscopy performed by Dr. Goodman, and suffered permanent, debilitating brain damage.

After two days of deliberations, the jury informed Judge Jacqueline Bolton that they were deadlocked and could not reach a unanimous verdict. After reminding the jurors of the time, expense and emotional energy that had been invested in the case, Judge Bolton proceeded to give the jury a very strong version of an Allen, or dynamite charge:

If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

According to affidavits from four jurors, this instruction caused them to rethink whether each juror was responsible for evaluating for herself which verdict would be correct. Rather, they felt as if the judge had suggested that they acquiesce to the majority position if that position had been resistant to arguments from the jurors in the minority.

One juror stated

When I heard the additional instruction again, I felt the court was instructing me to abandon my opinions and agree with the majority so that the case could be resolved by this jury and not have to be retried.

The jury ultimately found Dr. Goodman 51% responsible, which generated a damage award in excess of $6 million.

In light of the Allen charge and the subsequent affidavits, the defense is filing an appeal, alleging, among other things, judicial misconduct.

The unanimity rule employed by Tennessee is a major culprit in this drama. We know that at least two-thirds of the jury was genuinely in favor of finding for the plaintiff in this case. Would it have been more "just" to have found for the defense? That would implement tyranny of the minority. Would a hung jury have been a superior result? Well, if the entire matter has to be retried, the ultimate result would be that one side or the other would prevail. Why not let the first jury take care of that? This jury seemed pretty conscientious. Do we have any faith that the next one would be "superior" in any way?

Ultimately, several jurors in this case voted "insincerely." Four of them voted to hold the defendant liable despite the fact that they didn't really believe it. The 51% responsibility assigned to Dr. Goodman suggests a compromise: the members of the majority coalition agreed to reduce the doctor's responsibility level as low as possible, while still permitting the plaintiff to collect. It seems as if the jurors who wanted to find for the plaintiff didn't vote their true position either.

The courts have long turned a blind eye -- or a knowing wink -- to this kind of behavior by jurors. Judges know that holdouts are coerced into going along with the majority. They know that jurors cut deals to find a compromise they can all live with. The Allen charge is a not-very-subtle endorsement of this kind of "creative" verdict crafting. Most verdicts reflect only one kind of true unanimity: a unanimous willingness to suspend the rules in order to generate a verdict.

So, the legal fiction that is unanimity soldiers on. Meanwhile, the courts choose to ignore the implications for the legitimacy of our civil jury system (I have written extensively about the problems with unanimity in the criminal context elsewhere). Jurors are jaded about the fairness and transparency of our court system. Such an attitude can only be reenforced when the jurors themselves are forced to cut back-room deals to resolve cases. The slavish commitment to unanimity also leaves a trail of anguished jurors who have been forced to check their principles at the door in order to churn out a verdict. Regret of the sort experienced by the jurors in this Tennessee case is not uncommon. I have to think that they would have slept better at night had they been permitted to vote their consciences, even having been out-voted in the end. People don't mind losing, so long as they feel that they have had a chance to speak their piece and that the rules of the game were fair.

As for this particular appeal, I think that the defense has an uphill battle. One obstacle is the prohibition against jurors serving as witnesses with respect to their deliberations. Federal Rule of Evidence 606(b) (and its state counterparts) forbids jurors from testifying about their deliberations, or mental processes associated therewith, after a verdict has been handed down. There is an exception carved into the rule for "extrinsic influences" on the deliberations. This category typically includes unauthorized research by jurors, juror tampering and exposure to publicity about the case. I believe that the jurors can only testify about the effects of the judge's instructions if there is a "substantial risk of a miscarriage of justice" associated with the judge's alleged error.

I do not believe that an appellate judge is likely to be sympathetic to the defense claims here. After all, this kind of jury behavior happens all the time. The only difference here is that the judge chose to articulate what usually remains unsaid.