THE EXXON DECISION
'WE DID THE RIGHT THING' JURY FOREMAN RECOUNTS LONG HAUL TO JUDGMENT

By NATALIE PHILLIPS
Daily News reporter

ANCHORAGE- After more than four months of serving on the Exxon oil spill jury and not reading a newspaper, Ken Murray woke up Saturday morning and began catching up.

One of the first stories he read was about three seamen from two tanker escort vessels in the Valdez port who were cited last week for drinking while on duty.

"When I read that, I definitely knew we did the right thing," said Murray, the jury's foreman.

Murray and 10 other jurors made history Friday when they returned the largest punitive damage award ever $5 billion against Exxon Corp. for allowing a captain with a drinking problem to skipper one of its massive oil tankers.

"The two things we were concerned about were punishment and deterrence," Murray said in an interview Saturday. During deliberations, he said, jurors asked themselves: "Is this going to be enough to tell the Exxons of the world to stop it and to take a look at all of their safety sensitive positions?"

"I really admire Exxon," said juror Jewel Spann of Kenai. "I mean, they did everything absolutely possible to rectify the damage, but we wanted to send a message to all the other companies of the world.that this is serious business. We don't want our waters polluted again, so don't be careless, don't be reckless."

The jurors thought it was outrageous that Exxon chairman Lee Raymond couldn't name a single key player involved in the grounding, Murray said. They were not impressed by Exxon's executives who took the stand and repeatedly said "I do not recall" when asked details about what happened.

And, he said, they found it unbelievable that Exxon could call Hazelwood the "mostly closely monitored captain in the company's history," while unable to produce a single document to prove it.

"We looked at the company's bottom line and financial status and said here's a company that continued to make profits," said Murray. "Doesn't look like a bad thing had happened to this company. We weighed that against what would get their attention."

Getting there was a long journey. One juror, Jenette Garrison, crocheted several blankets that she gave to her colleagues as presents as the trial wore on. The pressure mounted toward the end, producing sleepless nights, standoffs and tears. The trial sent a couple of jurors to the doctor.

"Now they are on pills for high blood pressure," said Spann, who, like other jurors, was under orders not to discuss or read about the case outside the jury. "It kept me awake many nights. You just couldn't let go of it, and it didn't help that you couldn't talk to anyone about it. It was like being in your own world for 4 months."

Toward the end, when some of the jurors felt the public might be getting impatient, Murray said he told them, " 'If they are waiting, they are waiting.' It never became apparent that we should hurry."

Their journey began in early May by listening to three weeks of testimony. When they walked into the deliberating room that first time, they were confronted with piles of evidence.

"Where do you start?" Murray asked. All of it had been entered by number into evidence, but some had never been mentioned. To be sure that they were considering every shred, he said, they read through it all. It took them nearly two days to read through everything, to pore back over their notes from the testimony they had just heard, and to figure out how to proceed.

They asked for a computer so they could keep minutes of their work. U.S. District Court Judge Russel Holland turned down their request. Instead, they ended up relying on two easels where they could chart their progress.

They couldn't figure out whether Hazelwood had "seven or 14" vodkas on the eve of the spill or "this size or that size of the glass," Murray said. It didn't matter. The bottom line was he had been drinking and he admitted that himself under oath.

At that point, Hazelwood "had options at his hand," Murray said, including not leaving port. Instead, he set sail. Then to complicate matters further, he said, Hazelwood made a string of poor decisions.

"We really didn't think that he was totally impaired," Spann said. "We just had a bunch of conflicting stories. But some of the things he did, like leaving the bridge, leaving someone at the helm that really wasn't capable. Plus we found on the ledgers and another printout that the ship was increasing speed before it hit the reef. He was just irresponsible."

The jury also determined that Hazelwood legally could be defined as part of management, so that opened the door to including Exxon in the reckless verdict. But that wasn't the only reason Exxon was found reckless, Murray said.

After the company became aware of Hazelwood's drinking problem, it did nothing to monitor him, and a company with the resources of Exxon has no excuse for that, Murray said.

Though the company claimed Hazelwood was closely watched, "there was a lack of evidence," Spann said. "That upset me that such a large corporation had no written evidence of any kind to prove what it had done."

Four days after they began sifting through the evidence, they returned to the courtroom with their verdict: both Exxon and Hazelwood were more than just negligent in causing the 1989 disaster; they were reckless.

The jurors would come back to this in the final phase of the trial, but next they had to decide how much to compensate commercial fishermen for the actual damage they suffered. The fishermen were seeking nearly $1 billion; Exxon conceded it owed them money, but said the figure was no more than $113 million.

Phase Two was about dueling biologists and conflicting experts, Murray said.

"How the plaintiffs and defendants came up with such different numbers didn't make sense," Murray said. So the jurors began the arduous task of reviewing the dozens and dozens of fishing reports presented as evidence. The verdict form had 81 questions asking them to specifically determine how much different types of fishermen lost in all the different regions.

So, to speed up the process, they sometimes broke down into groups of twos and threes to work on individual problems. They would reconvene around the big conference table and share their findings.

The group dynamic was evolving. While there was a handful of jurors who were consistently outspoken, the quieter ones tended to keep a close eye on accuracy and details and speak up readily if the jury got off track, Murray said.

One juror, Rose Martin, was dismissed during the middle of their deliberations. Murray won't say why, and court documents are sealed.

Eventually the remaining jurors devised a mathematical formula for calculating a verdict. Without his notes in front of him, Murray could not recreate it.

"There is no guess work in the verdict," Murray said. "You have to have a reason for your madness."

Twenty-three days later, they returned a $287 million verdict less than a third of what the fishermen wanted. More than half of the nearly $1 billion the plaintiffs sought was for depressed fish prices for the years following the spill. "We just couldn't find enough facts to support it," Murray said.

The second phase of the trial took so long, Murray said, because jurors spent a lot of time waiting for documents, and once they had them went over the numbers over and over to make sure they stood up.

"There is no way to explain the tremendous amount of evidence we had to look at," Murray said. "A lot of the work in Phase Two was task-oriented."

A couple of days later, they were back in the courtroom listening to the final round of testimony. They now had to decide if Exxon and Hazelwood should pay punitive damages for their reckless behavior. Testimony lasted only one week.

While reaching verdicts in the first two phases of the trial was simply a matter of weighing the evidence, this decision was a judgment call, Spann said. "I think that was the hardest part of the whole trial. A lot of us aren't comfortable with punitive damages, but we wanted to make sure Exxon is never going to do this again."

"There were 11 people with 11 ideas," Murray said. Starting points ranged from $1 to $20 billion as the appropriate penalty for the oil giant, he said.

"It was very emotional," Spann said. "Trying to convince 10 other jurors, your side of it gets emotional. Everyone had an opinion and we had to work through it to come to a compromise."

Jurors thought Exxon sent conflicting messages in the first and third phases of the trial, Murray said. In the first phase, Exxon said it had done nothing wrong and the spill was simply an accident. But its defense in the third phase was that the spill spurred the company to change a multitude of company policies and procedures.

It simply didn't add up, Murray said. "We thought, 'This dog just won't hunt."'

Murray said he watched Hazelwood closely during the first phase of the trial. The former skipper would furrow his eyebrows. "I couldn't tell what he was thinking," Murray said.

On the first day of their deliberations in the final phase of the trial, the jurors asked for all their notes from the previous three months. They worked quietly for a few days, then on day four, one juror, Rita Wilson, was found by a court employee outside the deliberating room in tears.

On the fifth day, a note went out to the judge that they were at an impasse.

"I think we were just completely worn out," Spann said. "I can honestly say it was very stressful."

Murray, who wrote the note, said "We were at a point of feeling stressed. And Rita and a few others got caught up and their relief was crying. We were asking what to do if we got so slowed down we couldn't move. We were not deadlocked. We were slowing down.

"It was from the tension and stress. When you have a person crying, what do you do? You can't keep deliberating without her and she is not able to deliberate."

The jurors gave each other gifts to cheer themselves up, Spann said. One juror gave Wilson a teddy bear.

"The single most toughest thing was to make sure all 11 of us were talking," Murray said. "To make sure we were moving forward. Keeping the momentum was a problem."

On the 13th day, the jury reached its verdict.

It punished Exxon with a $5 billion judgment and Hazelwood with a $5,000 judgment.

In part, the judgments were just a "gut feeling kind of thing," Murray said. But it also involved careful examination of the company's financial reports. He was vague on exactly how the figures were reached. But when jurors were done, they had awarded the plaintiffs exactly one-third of what they sought in both actual and punitive damages.

"We noticed it when we were all done," he said. "It was just a coincidence."

With that, the jurors retreated home to their normal lives, ending more than four months of spending their days locked in a room together.

"We left as friends," Murray said. "We're talking about a Christmas reunion."

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