State bar may weigh in on jury comments

The Washington State Bar Association may be joining the legal debate over whether a Spokane jury’s racially charged remarks against a plaintiff’s lawyer during deliberations in a medical malpractice trial were sufficient grounds to nullify the verdict.

The bar association’s Amicus Brief Committee has recommended that the bar’s board of governors vote at its April meeting in Richland to approve a request to file a friend-of-the-court brief in the 2007 case, Turner v. Stime.

“We think this case meets the criteria we’ve set up for amicus briefs,” said Spokane city public defender Katherine Knox, chair of the bar’s amicus committee.

On Dec. 7, 2007 – Pearl Harbor Day – jurors ruled Dr. Nathan P. Stime, a Spokane general practitioner, wasn’t guilty of malpractice. But the verdict was overturned by now-retired Superior Court Judge Robert D. Austin after he received information that several jurors had mocked plaintiff’s attorney Mark Kamitomo during deliberations.

Juror Jack Marchant, a Washington State University professor, came forward to report that five jurors – three women and two men – called Kamitomo “Mr. Kamikaze,” “Mr. Miyashi” and “Mr. Miyagi,” a character in the movie “The Karate Kid.”

Kamitomo said his first reaction was to think the banter was harmless. But then a second juror, Mark Costigan, came forward. Both jurors provided affidavits about what they’d heard in the jury room.

One juror remarked on the coincidence of their verdict being read on Pearl Harbor Day – saying that given the date, another juror’s racially insulting remark about Kamitomo was “almost appropriate,” Costigan’s affidavit says.

In a Jan. 25, 2008, hearing, an angry Austin tossed out the verdict and ordered a new trial.

“We’d hoped we’d moved beyond this, and we apparently have not. It’s upsetting,” Austin said, adding he couldn’t be confident the jury verdict that went against Kamitomo’s clients was not a result of juror misconduct.

Austin later denied Kamitomo’s request to move the new trial to Seattle, where there is a more diverse jury pool.

Brian Rekofke, Stime’s lawyer, appealed Austin’s decision to the Court of Appeals in Spokane. He is an attorney with Witherspoon, Kelley, Davenport & Toole PS, the firm that also represents The Spokesman-Review.

“The verdict was 10-2. The affidavits filed were by the two dissenting jurors,” Rekofke said after the hearing.

In an appellate brief filed in September, Stime’s lawyers said Austin erred in granting Darlene and Bill Turner a new trial after newspaper publicity about the controversy.

Kamitomo supported Austin’s ruling. “The judge paid attention and did the right thing,” he said.