Thursday, December 14, 2017
News Roundup

Jurors who didn't reveal personal legal history could cause new trial in Pinellas assisted living facility death

ST. PETERSBURG — Every once in a while, blatant juror misconduct rattles the court system.

A Pinellas circuit judge declared a mistrial last year after three jurors exchanged notes about testimony.

Nine Miami jurors derailed a federal drug trial by reading news accounts on their smartphones, researching legal definitions on Wikipedia and combing the Internet for evidence the judge had excluded.

Now, the case of an 84-year-old Pinellas woman found dead in an assisted living facility stairwell will test the boundaries of a more common problem: jurors who withhold facts about their own encounters with the legal system.

After the woman's daughter sued, a six-person jury last November absolved the home of any negligence. Frustrated, the daughter's lawyers dug into the jurors' backgrounds, hit pay dirt and requested a new trial.

During pretrial questioning, all six jurors failed to disclose their own involvement with civil litigation. Collectively, they were parties to three bankruptcies, two mortgage foreclosures, a tenant eviction, a contract dispute, a declaratory judgment, an appeal, a child support action, a paternity suit and five domestic violence cases.

Circuit Judge Anthony Rondolino — scheduled to hear the motion for a new trial on Jan. 31 — cannot comment. But he is not happy. Before the trial, he warned jurors that any missing information could possibly void any verdict they reached.

"This is where I get nervous,'' he told them from the bench. "Put your thinking caps on." Had they "been involved in any kind of legal proceeding?''

Trials are often won or lost during jury selection, where each side gets to weed out a few people who might be unsympathetic. A potential juror's views on lawyers and litigation can be crucial. Answers may reveal clear-cut bias or maybe a subtle turn of phrase sets off alarm bells. Even a single juror withholding an important fact has been grounds for overturning a verdict.

In recent interviews with the Tampa Bay Times, three jurors acknowledged miscommunication but no malicious intent. The judge and lawyers may think they sent a clear message, but the jurors said it never hit home.

Why didn't Seminole resident Norbert Douglas Lindemann mention his 1996 bankruptcy? Potential jurors were asked if they had "ever been sued, or ever made a claim, or had a claim brought against you?"

"That was not litigation,'' Lindemann told the Times. "We went to a bankruptcy lawyer and he handled the whole thing. We did not go in front of a judge or anything like that. I just wanted to get out from under debt and keep my truck.''

The stairwell trial lasted almost two weeks. Legal costs ran well into six figures.

Rondolino has one idea for avoiding such messes in the future. For now, he must decide whether to start the stairwell trial all over again.

A walker, a stairwell

Marjorie Anderson worked for Sears in Kansas City before retiring to St. Pete Beach. Too frail to live at home by 2009, she moved into a 12th-floor assisted living apartment at South Pasadena's Inn at the Fountains. A year later, she inexplicably headed down the stairs with her walker.

Her body was found in a pool of blood between the 10th and 11th floors, her aorta severed.

Her daughter hired the St. Petersburg law firm of Keane, Reese, Vesely & Gerdes and the Tampa firm of Wilkes & McHugh. Anderson had fallen multiple times before her fatal accident. She could get confused. A doctor had ordered that aides help her transfer to and from the walker. The stairwell door had no alarms.

But the jury agreed with defense lawyers, who argued that Anderson's last shred of independence trumped any need for constant monitoring. She was strong-willed, and sometimes told aides to stop checking up on her. She rode the home's elevators with her walker — alone.

"It was an accident,'' said juror Waldemar Turkosz, a St. Petersburg resident. "If this had been a nursing home, I don't think anybody on the jury would have a problem with (awarding) $15 million. But this was assisted living. They are not supposed to take care of them 24/7. She wanted to be independent.''

Pretrial questioning helps lawyers decide how they want to use a limited supply of "peremptory challenges" to keep someone off the jury. Personal legal history can interest lawyers on both sides. Say someone had once lost a lawsuit. They might harbor ill will toward all defendants or, conversely, think nobody should collect money if they couldn't.

Bennie Lazzara, representing Anderson's estate, also looks for people who just don't like lawyers. He sometimes asks where people get their news. If they answer Rush Limbaugh, he may give them the boot.

St. Petersburg resident Loquitta Yusuff lost a house to a 2001 foreclosure but never mentioned it during jury selection. She bought the house from a friend just after high school and moved out almost immediately, she told the Times. Records show she was notified of the foreclosure but did not contest it.

"That isn't a lawsuit. I didn't go to court,'' she said. "I can't say specifically what happened to that house.''

No way was her failure to disclose intentional, Yusuff said.

"I had to miss work for two weeks for that trial. If I knew I could get out of that, I would have said something.''

Turkosz had a 1992 mortgage foreclosure, but public records show the suit was dropped after he paid up. He also went through bankruptcy in 1993.

In their questioning, Rondolino and Lazzara instructed potential jurors to reveal any evictions, foreclosures, contract claims and "any kind of legal case.'' But neither specifically mentioned bankruptcy.

"I'm not a lawyer,'' Turkosz told the Times. "I didn't think I was being sued.''

Turkosz also speculated that Lazzara might have stashed him on the jury as a hedge. Lazzara's assistants could have combed records on their laptops during questioning. If a juror failed to disclose, the lawyers could tuck that fact away and argue for a new trial if they lost.

"I think I was his mulligan,'' said Turkosz, using a golf term for a do-over shot. "This is a dirty business. This is what America is all about — money.''

Attorneys for the Inn at the Fountains did not return calls seeking comment.

A possible solution

"Communicating with potential jurors about their legal history is a common challenge,'' said Manny Menendez, chief circuit judge for Hillsborough County.

"I try to cover everything in the world,'' Menendez said. Still, "some people are not going to raise their hands. They either don't know they were being sued, or they are ashamed.''

Menendez, a lawyer for 41 years, cannot recall a trial where all six jurors allegedly failed to disclose past legal entanglements.

"I can see one or two misunderstanding,'' he said. "Six, that's scary.''

Turkosz, the stairwell juror, suggested that courts learn from doctors who list dozens of potential diseases on registration forms, where new patients can check off their medical history.

"If bankruptcy had been down there, I would have circled that,'' he said.

Anderson's attorneys must convince Rondolino that failures to disclose distorted the pretrial challenge process. No matter how the stairwell case turns out, Rondolino said, he may change how he handles complex cases .

Investigating the backgrounds of hundreds of potential jurors is not practical, Rondolino said. But after a jury is picked, he might send them home for 24 hours while both sides run background checks on just those six.

If need be, new jurors could be brought in. The trial would be delayed a day, but lawyers would not get second bites at the apple.

"With today's modern investigative techniques using computers and public records, the information should be available,'' Rondolino said. "We wouldn't have to risk trying the case all over again.''

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