by Linda Holmes, J.D.
Aug. 11, 2008
When you’re in the hands of other people, how good can you expect them to be?
It sounds like an abstract question, but it became a reality after the latest twist in the bitter battle between Mattel, which makes the iconic Barbie doll, and rival MGA, which makes the popular Bratz doll. Mattel and MGA have been locked in litigation since 2004, after Mattel sued former employee Carter Bryant, claiming that he created the Bratz doll while under a contract with Mattel that gave it the rights to any of his inventions or ideas and that he then took the idea to MGA, which went on to make billions of dollars from Bratz. MGA CEO Isaac Larian was a key figure in the case. As it happens, he is Iranian.
The 10-person jury returned an almost complete victory for Mattel, finding that most of the Bratz sketches were created during Bryant’s Mattel contract. Before the damages phase of the trial, however, a juror sent a note to the judge telling a troubling story about deliberations.
The court eventually spoke to all of the jurors and learned that “Juror No. 8,” as she is fortunate enough to be anonymously known, had told the group that her husband — a lawyer — had represented Iranian clients who “are stubborn, rude, stingy, are thieves, and have stolen other person’s ideas.” According to the judge’s order dismissing Juror No. 8, she made these remarks after the jury had reached agreement on all questions about which it ultimately delivered a verdict but before it returned the verdict.
The judge’s order further notes that, according to his investigation, the jury came down hard on Juror No. 8. The foreperson condemned the remarks on the spot, and “several other jurors also registered their disapproval with Juror No. 8’s comments, some very emotionally.” One juror’s biggest concern wasn’t whether to distrust Larian; it was whether she was so upset by the comments that she would end up bending over backward in sympathy to MGA.
Not satisfied with the removal of the juror, MGA and Larian, who had been named personally in the lawsuit, moved for a mistrial. The judge chose not to grant it, in part because the jury seemed to have turned on Juror No. 8 en masse. The judge commented: “If only every jury in this country would react to racism the way this jury did, we would have a better judicial system.”
Mattel’s response to MGA’s mistrial motion offers an uncomfortable glimpse at the position of a victorious plaintiff defending a verdict that is certainly tainted as to one of 10 jurors. Given her remarks, it’s impossible to feel confident that Juror No. 8 gave MGA a fair shake. That doesn’t mean the other nine jurors in the unanimous verdict didn’t, and it doesn’t mean a fair shake would have led to a different result, but doesn’t a company that’s fighting for its life deserve fairness from every last juror?
Answering that question, and especially figuring out what to do with that answer, is tricky. Because the jurors reported that they reached agreement on the issues on which MGA lost the case before Juror No. 8 said anything, it would be hard to argue that her remarks influenced the verdict. MGA was left to argue that the remark Juror No. 8 made was evidence of the bias she brought with her into the courtroom — not that the remark affected the other jurors but that the remark is evidence that she could not have been fair.
The problem with MGA’s position, simply stated, is that courts absolutely hate meddling in jury rooms, no matter how messy they get. Consider Tanner v. United States, in which a juror offered testimony that several of his fellow jurors were drunk, using drugs and sleeping during the trial. The Supreme Court nonetheless applied an existing evidentiary rule that flatly excludes juror testimony about the quality of jurors’ internal processes. If something external had happened — tampering, threatening or introducing external information, such as a newspaper article brought in by a juror — the question would be different. But the rule largely locks courts out of the question of whether a jury was smart or dumb, naive or streetwise, paying attention or staring at the ceiling, and even drunk or sober. The question in the MGA case is whether the evidentiary rule also excludes an examination of whether a juror was racially biased.
Note that all of these things can be investigated during voir dire, when prospective jurors are questioned by the court and the attorneys. The lawyers can try to find out how smart you are or how likely you are to drink during the trial. The problem comes when the finality of the verdict is upset by an attempt to reexamine the quality of the jury’s thinking by admitting the testimony of jurors. The possible consequences are obvious: jurors harassed after the fact to offer testimony about deliberations, line-drawing about where a juror’s life experience ends and his prejudices begin, cases that never end.
It’s an interesting question: Would you rather have a juror who’s dumb or a juror who’s racist? Would you rather have a juror who sleeps through the trial or a juror who’s biased against you? Perhaps a biased juror can put aside his preconceptions and look at the evidence; this is what all jurors are asked to do anyway. The juror who pays no attention cannot see the evidence at all. In either case, you have not had what we all envision, which is a group of decision-makers who decide your case based solely on the evidence.
But unlike sleepy or drunk juries, racially biased juries do not affect everyone equally. In a legally tenuous situation, we are all at risk of encountering a juror who sleeps, drinks or doesn’t understand simple logic. But a racially prejudiced juror is the peculiar burden of racial groups that are most often discriminated against. Everyone theoretically could encounter a racially hostile juror, but it’s not equally likely for an Irish defendant and an Iranian defendant.
The Bratz case is less troubling because only one juror out of a unanimous group of 10 was involved and because the other jurors seem to have reacted appropriately. But it’s not clear, based on Tanner, that the result would be any different if it were multiple jurors or if the others had condoned the remarks rather than condemn them. If a high-profile case of that kind comes up, the wisdom of continuing to treat a juror’s racial prejudice the same way we treat inattention or simple foolishness will undoubtedly be subject to greater scrutiny.
Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.
Bryant v. Mattel, Inc., No. CV 04-9049 (C.D. Cal. 2008).
Mattel’s Opp. to Defs.’ Mot. for Mistrial, Bryant v. Mattel, Inc., (C.D. Cal. July 31, 2008) No. CV 04-9049.
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