When Outside Information Taints Jurors and Verdicts

Toni Thornton was admitted to Silver Cross Hospital in Joliet during the nurses’ shift change in labor and delivery.

She was between 23 and 28 weeks into her pregnancy and had previously given birth prematurely. The nurses noted that her contractions were two to three minutes apart. No obstetricians were on duty, but the nurses paged her doctor, who ordered certain medications and an ultrasound that was never completed.

The doctor, Francisco Garcini, was paged a second time at his home, but he apparently was in the shower and did not immediately answer it. By the time he phoned the hospital, he was told that the plaintiff had partially delivered her son in a breech position at about 7:10 a.m. and that the baby had become entrapped at the neck.

He later testified that he told the nurses not to force the full delivery of the baby. Thornton lay there waiting until he arrived, more than an hour later, about 8:20 a.m., whereupon he removed the baby, who was about two pounds, apparently dying of asphyxia.

The plaintiff’s expert testified that Dr. Garcini had violated the standard of care in not leaving immediately for the hospital once he was told that the plaintiff was in labor, particularly given her history, the term of the pregnancy, her condition as described by the nurses to the doctor, and the fact that he could not expect another doctor to be available to assist the plaintiff in her delivery.

The jury found in favor of the defendant, but the plaintiff represented by E. Kent Ayers of Spesia, Ayers & Ardaugh of Joliet, in a post-trial motion reported receiving information that some jurors had been exposed to prejudicial extrinsic materials during their deliberations.

The trial court allowed limited discovery on whether the jury verdict may have been improperly influenced by newspaper articles, in particular about the survivability of premature babies, an issue critical to the case.

Two jurors responded to questionnaires, saying they had read one of the articles, but that they had not discussed it with other jurors. The trial court concluded that there was "very little probability" that the articles had an adverse effect on the case.

On appeal, though, the appellate court reversed this finding and held that the defense had failed to rebut the presumption of prejudice. Thornton v. Garcini, 364 Ill.App.3d 612, 846 N.E.2d 989 (3d Dist. 2006). Justice Mary K. O’Brien’s majority opinion found that the standard is that such information is "presumptively prejudicial" when it reaches the jury.

"The party challenging the verdict needs to show only that the information relates directly to something at issue in the case which the losing party did not have the opportunity to refute and that may have influenced the verdict.[citations omitted] The losing party need not prove actual prejudice. [citation omitted] The burden shifts to the non-moving party to show a lack of prejudice." Id., at 616-17.

The standard really is one of due process. "The vital question is whether the jurors exposed to the information, or any of them, were influenced and prejudiced to such an extent that they would not or could not be fair and impartial jurors... A trial court should not consider conclusive a juror’s statement that reading a prejudicial newspaper article has not influenced him." Id.

Therefore, courts must determine not whether the verdict was actually influenced – an impossible and unjust evaluation – but whether the unauthorized information might have improperly prejudiced the verdict. See, Wade v. City of Chicago, 295 Ill.App.3d 873, 693 N.E.2d 426 (1^st Dist. 1998).

Extraneous information is considered "presumptively prejudicial," necessitating reversal of a verdict. Stallings v. Black and Decker, 342 Ill.App.3d 676, 796 N.E.2d 143 (5^th Dist. 2003).

Because the jurors were not personally questioned by the court, and only those who admitted reading an article responded to a written inquiry, the appellate court held that this process did not satisfy the defendant’s burden to demonstrate that no juror was prejudiced by these extraneous materials.

Furthermore, the court found that the plaintiff did not have the opportunity to question the information or the sources relied upon in the article.

"If any juror exposed to the articles in any way was in doubt as to whether the cause of baby Jason’s death was the inaction of Dr. Garcini or the baby’s inability to survive due to his gestational age, the extraneous articles could have tipped the scales, resulting in an improperly influenced verdict." Id., at 618.

The Illinois Supreme Court denied the defendant’s petition for leave to appeal. (No. 102429, May 24, 2006).

It is clear now that the courts have concluded that even if one juror’s opinion is tainted from extrinsic evidence, the verdict cannot stand because it is unfair to the parties. People v. Collins, 351 Ill.App.3d 175, 813 N.E.2d 285 (2d Dist. 2004).

Although the issue of a juror’s exposure to news accounts appears to be more common in criminal cases – as the issue was raised in the recent trial involving former Illinois Gov. George Ryan – the issue of a fair trial can be brought into the same sharp focus in a civil matter.

Sequestration, though, is not necessarily the panacea. Rather, jurors need to take their duties seriously. If, by chance, they see news reports on their case or outside opinions that could impact their judgments, they must remain on task. They certainly came to the courtroom with a myriad of experiences and judgments they just need to base their verdict on what they hear in the courtroom.

Judges need not be afraid of the presence of reporters; rather, throwing open the courtroom doors to allow people to witness the workings of a system put in place by our founding fathers can be healthy. Cameras in the courtroom? I’ll leave that for another day and another column.