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Is it ever right to tell the jury it's wrong?

By Staff
Suzanne Monk / managing editor
Sept. 14, 2003
Every week, two "hand-down" lists are released by the state's appellate courts. They are made up of the decisions issued by the Mississippi Supreme Court and the Court of Appeals.
I look at them all, but I only write about the ones that display some combination of the following: 1) the appeal stems from a violent crime that made news when it happened and/or when it was tried; 2) the situation illustrates a general principle or trend that affects the lives of a large number of people; 3) the decision is surprising either in its own right or because of the people involved.
This column involves two decisions issued over the last week that fall into the third category.
In both, verdicts in Circuit Judge Larry Roberts' court have been overturned and the judge has been instructed to conduct a new trial.
Subtle point
Judge Roberts tends not to be reversed. Certainly not, in my memory, twice in the same week.
When he is, it often has to do with a tortuous point of law or because the law changed after the case was adjudicated in Lauderdale County Circuit Court.
One of these reversals is like that, a hair-splitter in a medical malpractice lawsuit that came down to seven words included in a stack of written jury instructions: "in the exercise of their best judgment."
The seven words referred to the doctors' thought processes and a majority of the Mississippi Supreme Court's nine justices felt those words introduced an inappropriate element of subjectivity to the jury's deliberations.
So, a new trial on a legal fine point.
Bad verdict?
There's nothing subtle about the second reversal.
In this civil case, the Court of Appeals said there was nothing wrong with the trial. It was just that the jury made the wrong decision and Roberts should have thrown the verdict out.
Six of the nine voting judges said this was one of those rare cases where the decision of the jury should have been ignored.
Here are the basic facts of the case.
A Lauderdale County woman placed her helpless, bed-ridden mother in a nursing home in Columbus. The facility was also home to an old man who did a lot of wandering around everyone's room making lewd remarks and inviting people to have sex with him.
Less than a month later, nursing home workers discovered the man in the elderly lady's bed. He was on top of her and was holding her arms down, both their private parts were exposed, and he was rocking back and forth.
A sexual assault had clearly occurred, but a hospital examination of the elderly lady came up negative for actual penetration. Her daughter filed a civil lawsuit against the nursing home for failing to protect her mother. The jury, in a 10-2 vote, sided with the nursing home and denied her claim for damages.
The daughter's lawyer asked for a "judgment notwithstanding the verdict" or, in the alternate, a new trial.
Judge Roberts denied the request.
Reversing a jury
There are only three circumstances that justify setting aside the jury's verdict in a civil trial: 1) the verdict is against the overwhelming weight of the evidence; 2) the jury has been confused by faulty jury instructions; or 3) the jury has deliberately violated its oath and its verdict is the result of "bias, passion and prejudice."
The Court of Appeals said this verdict falls into the first category.
In their ruling, the judges said the elderly lady was unable to care for, or protect, herself.
Writing for the COA, Judge William H. Myers said the old man was known to be "abusive, both with physical violence and crude sexual displays and comments.
Five judges joined Myers' opinion.
The COA ordered a new trial.
Split decision
Three COA judges, however, disagreed.
They said it was not so cut-and-dry as their colleagues indicated. The testimony about what the nursing home did, or did not do, to protect the old lady was disputed. The dissenting judges said the jury is the ultimate judge of which witnesses to believe.
There was a question, they said, of whether the elderly lady had sustained an actual injury or even remembered the incident.
There was no indication, they said, that the jury had breached its duty.
I would not imagine that throwing out a jury verdict comes easily to a trial court judge. After all, that's what the trial was for in the first place.
Look for more hearings in both cases.

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