The lawyers for Merck are highlighting one single inference from the collection of five handwritten-notes, penned inside the jury room, in the federal District courthouse in Manhattan this past week, in the first bellweather Fosamax® trial. Everyone agrees that this jury broke down -- as a group of eight. I think almost everyone would agree that the notes reflect a seven-to-one split.
What cannot be known -- without individual, en-camera juror interviews (ones Judge Keenan wisely decided not to conduct) -- is whether one or more members of the jury effectively "bullied" all the others (save the one, strong, lone holdout) into the final, deadlocked seven-to-one configuration -- a configuration reached sometime on Tuesday afternoon (after only nine hours in the jury room). A configuration reached, perhaps, even before all the evidence had been reviewed by the jury -- see below.
If there was improper pressure from one or more jurors from the go, another reading of these notes would hold that a "silent majority" chose not to cross the juror(s) pushing for a "charge-not-proved" outcome. Consider this salient excerpt, from Attachment A -- a note penned by a juror on Tuesday around noon (click image at right to enlarge it) -- in text, then:
. . . .Many jurors are very impatient, and have not given enough time to thoroughly review the evidence. Every time I attempt to read, people are overtalking. . . . Hundreds, or thousands, of pages of so-called evidence has not been touched. . . . Should we spend more time seeking the truth?
Thus there is at least some support for the notion that this jury's work was tainted from the beginning -- by impatience, or overly-nasty bickering, or a pre-judged outcome (by either camp of jurors -- or by both camps). So it is possible actual deliberations never got underway -- that the jurors very-quickly, and improperly, I might add, came to final decisions without following the outline of the instructions Judge Keenan gave them, for deliberations.
Finally (as long as I am speculating here!), given how carefully the final note -- signed by all jurors, except Juror No. 5, phrased their objections, and request for a deadlock finding -- "she won't follow your instructions" -- Judge Keenan was left with very few practical alternatives -- and was pretty much forced to declare a mistrial. The more "Oliver Stone-ish" version of my psyche wonders whether someone on the jury received some external coaching -- as to the very precise, almost lawyerly wording, found in that last note. None of the others were nearly so well-parsed. Odd.
So -- at bottom -- I would say that very little should be taken away from one battered and misshapen jury box (or the broken chair it left behind, in the courtroom hallway).
Earlier story, on this, here.
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