JURY RECALL CONFUSES EXPERT
ACTION BY EXXON SPILL TRIAL JUDGE MAY BE UNPRECEDENTED

By ROSEMARY SHINOHARA
Daily News reporter

ANCHORAGE- Juries rarely are called back in for questioning months after a trial, as happened this week in the Exxon case, a national expert said Thursday.

Michael Rusted of Boston, a law professor at Suffolk University law school who has done extensive research on jury verdicts, said it's hard to find even one case in which the judge has interviewed the jury after a trial.

''If juries could be routinely impeached, especially months later, the integrity of the institution would be under attack,'' he said. ''Every time you had an unpopular verdict, you could hound the juries to death.''

Losers in court cases often raise jury misconduct or tampering as a reason for appeal. But such arguments rarely get anywhere with judges, he said. And when the issues are raised, they normally are based on a paper record, not on interviews.

In the Exxon case, 11 jurors last fall returned a $5.3 billion verdict against the oil company for oil spill damages.

The most famous case in which influence on the jury reversed a verdict was Dr. Sam Sheppard's murder trial more than 40 years ago in Cleveland. Sheppard was accused of bludgeoning his wife to death. Sheppard contended an intruder killer her. A jury found the doctor guilty. Ten years later, the U.S. Supreme Court ordered a new trial, saying pretrial publicity and a ''carnival atmosphere'' with news reporters practically taking over the courtroom influenced the jury. The second jury, 12 years after the first, found Sheppard not guilty.

In Alaska, the federal district courts have a rule that lawyers cannot contact jurors after the trial. In many places, including California, lawyers are free to contact jurors after the fact, said Terri Waller of Oakland, Calif., managing partner of the National Jury Project West, a trial consulting firm.

But even so, it's more common for lawyers to interview jurors than for the jurors to be brought back into court before the judge, Waller said.

Post-jury investigations are frowned upon because ''once the jury has spoken, judges are afraid of having a chilling effect on the jury,'' Rusted said.

Usually if such investigations are allowed, it's because there's a smoking gun -- something that would indicate obvious jury misconduct or tampering -- or extraordinary publicity, he said.

But Judge Russel Holland handled the Exxon trial in a much more orderly and structured fashion than Sheppard's case, Rusted said. ''I don't think you would characterize it as a circus atmosphere.''

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