Juror Bias Warrants New Trial in Case with Lawyer Mark Kamitomo
Spokane Attorney Mark Kamitomo represented a woman who claimed to have been the victim of medical malpractice. The jury disagreed. Later it came out that the jurors belittled Mr. Kamitomo during deliberations by referring to him as “Mr. Kamikaze” and “Mr. Miyagi” (a character from the film Karate Kid). One juror said that the jokes about Mr. Kamitomo’s name were almost appropriate because the day was December 7th, i.e. Pearl Harbor Day.
Spokane County Courthouse
The jury deliberations were in private, but one juror, a professor at WSU, came forward to report this to Mr. Kamitomo. Mr. Kamitomo filed a motion for a new trial, which was granted by Judge Austin, and this decision was affirmed on appeal Thursday. See article in the Spokesman-Review.
On one hand you have to feel a little bit bad for the doctor who was found to be “not negligent” and who will now have to face a new trial through no fault of his own. However, there were some comments that the doctor’s lawyers made that have to make you wonder. First the defense lawyer characterized Mr. Kamitomo as playing the “race card”, and then at the court of appeals, the doctor’s lawyers suggested that the words “Kamikaze” and “Miyashi” are complimentary. Mr. Kamitomo’s father was interned in a camp during World War II — I am not really sure it is fair to ask Mark Kamitomo to have a sense of humor about this. Good attorneys should always be prepared to win or lose any case, but if it is clear that juror bias played a role in a decision, the loss should not be just shrugged off. Trial lawyers always have a heck of a time selecting jurors who will be unbiased. As a criminal defense attorney, I am often faced with representing a client who is of a different ethnic background then a mostly all-white jury pool. When you ask the jurors about any biases they have, they usually just stare back at you blankly. When granting a new trial, Judge Robert D. Austin explained “people are never forthright with their prejudices … rarely, if ever, will people disclose that.” I would imagine that it would be quite awkward for a non-white attorney to question jurors about any biases they might have. Jurors sometimes seem to take offense that they are even being asked questions like that.
In my practice, I sometimes represent Tribal members who are being charged in state court with various crimes. There is always a concern on my part and the part of the client when we conduct jury selection. I thought of this the other day when I viewed a video clip of an interview with Jaimee Grubbs. Jaimee Grubbs allegedly had an affair with Tiger Woods, but the interview largely dealt with her feelings about Native-Americans. See clip. Jaimee Grubbs grew up in Coulee Dam, a town bordering the Colville Indian Reservation. She lived in an area where State Courts draw their jurors from. Jaimee Grubbs characterized the Colville Indian Reservation as “ghetto” and explained: “They get their free money, they drink and that’s all that matters.” She said that she will never date a Native American man. “They fought, they drank. They are very aggressive….”
Jaimee Grubbs made these comments as part of an audition tape that she did not anticipate would be made public. How would Jaimee Grubbs have answered the same questions if she were on a jury panel? Would she have been as forthcoming in a court of law, with an Indian defendant and his family present?
Back to the case with Mark Kamitomo. Am I the only one who is surprised that the newspapers printed the names of the jurors who allegedly made the racial comments? Aren’t jurors entitled to a little more privacy about comments that they make during deliberations? I don’t have any problem with calling out individuals who make such statements publicly, but traditionally the misconduct of jurors is handled with a little more anonymity. Serving on a jury is compulsory, after all. Wouldn’t the printing of juror names in this case make it less likely that a potential juror in the future would confess bias during jury selection? Should Judge Austin have directed the lawyers not to refer to the jurors by name in the court pleadings?
March 2013 Update: The case went to a retrial with a new jury. This time Mark Kamitomo won a verdict of $813,000.00.
There is a difference Steve between your practice as a criminal defense attorney, and the insurance claim in this case. Criminal trials need to be unanimous, so one or two bad apples can effect the verdict. But here it was a civil case, with a verdict 10-2 against Kamitomo’s client, thus the comments by a couple of jurors, however insensitive, did not effect the outcome. Additionally, you need to make a distinction between bias against the attorneys and bias against the client. You are talking about bias against your clients, but Kamitomo was talking about bias against himself. Ultimately verdicts of any sort are in favor of clients not attorneys, so greater care needs to be taken to prevent discrimination than with jokes about an attorney. The problem with this court decision is that it will open the door to all sorts of appeals based on comments made. With jurors we are talking about average Joe six-pack type of people. What trial will ever be held without at least one juror making some judgment (outloud or to himself) about a some participant’s race, background, appearance etc?
Here is the problem. Tort lawyer specifically pick jurors because that is how you get big awards. They pick jurors because the don’t always make their decisions based on the facts and the law – they make decisions based on emotions and passions and what they had for breakfast that morning. That works in their favor often, but when it doesn’t they shouldn’t complain. You want a decision based on logic and the law? There is a word for that – “bench trial”