Lawyers weigh in on next step in juror puzzle

WAILUKU - What the jurors said to the judge in the Lahaina Fashions case is still a mystery, but lawyers for both sides have now advised 2nd Circuit Judge Joseph Cardoza what they think he should do next.

One side argues that due process requires that the judge reveal what the jurors said, the other side argues that due process requires that he forget about it.

After a trial that lasted from April to June, a jury delivered a verdict to the judge June 10, which appeared to exonerate defendant Bank of Hawaii and its trust arm, Pacific Century. It had been sued by Lahaina Fashions, once the owner of the Front Street building where Planet Hollywood was the main tenant, for allegedly interfering with a chance of selling it at a profit, in which Lahaina Fashions would have shared, even though the firm had sold the real estate to the trust.

When Cardoza went to thank the jurors, somebody said something that caused him to return to the courtroom and tell the assembled lawyers that "statements were made that could potentially raise an issue relating to the verdict of the jury."

The plaintiffs demanded to know what that was, and the defendants' lawyers said the trial was over and nothing more should be said.

Cardoza asked each side to submit briefs about his next step and said he would research it himself.

The plaintiff's lawyers found two cases, not in the 9th Circuit that covers Hawaii, where a later juror's statement caused a verdict not to be changed but the judgment to be altered.

In each case, the jury had fixed an amount for damage and itself applied a factor to deflate the amount because of divided culpability. In each case, the court should have done the deflating.

Thus, the plaintiffs were expected by the juries to get twice what the judge had thought they intended. The appeals courts found that the late information should be used.

Not here, argued the bank's lawyers. Hawaii rules clearly state that: "Evidence of the jurors' thought process is inadmissible."

"Public policy prohibits the use of information obtained through informal, post-trial interviews (whether by the court or the attorneys) to impeach the jury's verdict," the bank's lawyers say.

They say: "The jury was dismissed."

The plaintiffs say it was not. They point out that Cardoza brought the jurors back and rescinded his earlier instruction which had said "after you have been dismissed from your jury service in this case, you are free to discuss this case with anyone."

Then he told them they were to keep quiet and were "subject to potential recall."

Therefore, the plaintiffs argue, the trial verdict was not final.

Further, they argue that Hawaii rules require that "all trials be conducted in open court."

The briefs also argue such issues as "judicial economy," and under what circumstances a judge can end up as a witness in a trial he conducted.

The plaintiffs say that until they know what was said, they don't know what they can do with it.

The jurors' verdict sheet offered hope to both sides, because they said they agreed that the bank had interfered and they set the total of compensatory and punitive damages at $1.5 million. But they also said the statute of limitations had expired before the suit was brought.

The bank's lawyers are Terence O'Toole, Judith Pavey and Andrew Lauterbach. The plaintiff's lawyers are Joseph Alioto Jr., John Dombroski, Angelina Alioto-Grace, Tom Pier, and Philip and Ben Lowenthal.

* Harry Eagar can be reached at heagar@mauinews.com.