The plaintiff wanted us to find that they had been materially damaged by a tobacco-industry conspiracy.  But, in terms of the law itself, for us to convict, it would have to be shown that the Manville Trust had been materially damaged--that it had spent extra money--because of fraud perpetrated by the tobacco companies.  

"Maybe it was wrong, maybe it was too much, but it was not a fraud," said David Bernick, lead lawyer for Brown & Williamson.  And fraud it had to be, if we were to follow the law in finding against the tobacco industry.  Yes, Bernick said, his client and its co-defendants had tried to "push back on political pressure, regulatory pressure" to save themselves and their profits.  In their public relations campaigns, they had claimed they would conduct research on their product and disease.  Yes.  In reality, they had done little more than deny a material link to disease.  Was that criminal?

I had been hoping it was.  For seven weeks, I had listened to argument and testimony surrounding the actions of the tobacco industry.  From the beginning, I had wanted to hurt it, to make it pay for all of the suffering its products had caused--I wanted to do what the Merck jury did do.  But now, listening to Bernick's summation, I was no longer sure I would be able to decide that fraud had been established and that damages were due the plaintiff.

Early in the trial, Edward Westbrook, the Trust's lead lawyer, had insisted that the tobacco companies should "pay their fair share" for disease caused by the particularly deadly combination of tobacco and asbestos.  I had nodded.  The Trust, established in the wake of the Johns Manville Corporation bankruptcy, had taken responsibility for paying for asbestos-related disease resulting from Johns Manville products.  Because cigarette smoking exacerbates such diseases, the Trust felt that the tobacco companies should shoulder at least a part of the burden.  I still think there is a strong moral element to Westbrook's argument--but that is not proof of a crime.

And our charge was to determine whether or not the tobacco industry had violated the very specific RICO regulations.

The Manville Trust was desperate for money.  Created out of Johns Manville Corporation bankruptcy proceedings begun 1982 due to overwhelming asbestos disease litigation, it had taken over Johns Manville's liabilities.  According to a statement by the Alliance for a Fair Tobacco Settlement to the House Judiciary Committee on 2/5/98:

Asbestos litigation defendants have paid... tens of billions of dollars in compensation to injured asbestos workers....  The asbestos trusts that stand in the shoes of those bankrupt companies pay as little as 10 cents on the dollar for their admitted liability.  By contrast, the tobacco companies have paid nothing to asbestos workers injured by smoking.

The '10 cents on the dollar' paid continues to be true for the Manville Trust.  Sufferers from asbestos disease are not getting fair compensation, and the Trust wanted to change that by forcing the tobacco companies to chip in.

The Trust claimed, with some justification, that the combination of asbestos exposure and tobacco use created a synergy that made lung cancer much more likely.  What they were not able to do, however, was prove that the tobacco industry had acted in an illegal conspiracy that had materially affected them.

What the Trust was hoping for was an outcome like that of the Merck case in Texas.  The tobacco industry reputation was deservedly low, and the Trust was hoping we would punish it by finding for the plaintiff, just as the Merck jury did this month.

But the Trust couldn't even make a convincing case that it had paid tobacco's share of the disease it was paying claimants for.  I now felt that it surely couldn't be argued that it had been harmed by big tobacco's deceit.

Most of the other jurors agreed with the conclusion I came to, that the burden of proof had not been met by the Trust (in a RICO case, there are quite specific elements of conspiracy that must be proved).  Two, however, did not.  Or, rather, reacting like the Merck jurors, they felt that the tobacco companies were bad on the face of things, and should be punished.  The rest of us felt we had to anchor our discussions in evidence and law, if we were going to reach an honest verdict.  These two would not do that.  The tobacco companies needed to be punished--and that was that.

"They have to be guilty," said one.

"There was fraud," said the other.

"And what about the destroyed documents?" asked the first.  The plaintiff's lawyers had constantly harped on missing tobacco-company documents.

The rest of us explained that the burden of proof lay with the plaintiff, and that, were we to convict, we would have to see that proof.

"Show it to us," we pleaded.  "Help us find it."  They could not, but would not change their views.

Our attempts to engage the two went on for four frustrating days.  We continued to try to get them to debate, even though we all knew that it was futile.  They were not going to agree to acquit the tobacco companies, and that was that.

Once, when one of the dissenters finally said that "the tobacco companies should have done something, so should pay," I wrote, in big block letters on a pad on an easel: "Silence: Not A Crime."

But even that did not help.  They, like those Merck jurors, wanted to "send a message" to the tobacco companies.

On the fifth and final day of deliberation, discussion got quite tense.  We sent a note to the judge, asking him to clarify whether or not silence, in terms of RICO, could be considered a crime.  Frustrated and fed up, people were shouting at each other.  Finally, as foreperson, I grabbed my pad and pen and wrote.  "That's enough," I said.  "Let's send this in."  I read what I had been writing, and what we had been avoiding for days: "We cannot reach unanimity."  

While I was speaking, another juror, suddenly red-faced, yelled in agreement, "If this keeps up, somebody is going to kill someone."

A dissenting juror turned and screamed at him, "Don't you threaten me.  Nobody threatens me."

"I didn't threaten you."  

The other juror, seeming to ignore him, turned and started writing.  "I heard what you said," she muttered.  She folded her paper, opened the door, and handed it to the marshal outside.

"Do we all agree with this?"  I held up my paper.  For the first time, everyone nodded.  I relayed my paper, too, to the marshal.

I'll let the Associate Press take it from there:

A judge declared a mistrial Thursday in a high-stakes tobacco trial after being warned that deliberations were so strained that one juror had threatened to kill another.

"I have an obligation to jurors to protect them," U.S. District Judge Jack Weinstein said.

The last of three notes sent to Weinstein on the fifth day of deliberations read, "Juror has made threat against other juror to kill'' if they have to be "here much longer.''

Juror Maggie Altidor -- one of two holdouts in a 10-2 deadlock favoring the tobacco industry -- told reporters she wrote the third note after a male juror threatened that if deliberations lasted another day, "one of us would be killed.''

For the tobacco companies, the hung jury was as good as a complete victory.  For the Trust, well, other avenues to revenue would have to be found.  Westbrook said he would seek a retrial, but he never has.

It bothers me that our jury system is used for things it was never meant for (it was meant as a means for determining guilt for specific crimes, of course).  Using a jury to "send a message" or to "punish" someone or some entity for crimes other than the specific charges is an abuse of a legal system that, problems though it may have, has protected us for quite some time not.

The Merck jurors may not understand this, but they are making it easier than ever for the jury system to be abused.  There's enough of that already, from the OJ jury on.  They are making it easier for juries to "play God" and ignore law.

That's not good for any of us.