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Jurors hearing a case between Hayes Microcomputer Corp. and three of the modem manufacturer’s former executives couldn’t wait to begin discussing the evidence. Unfortunately, the trial wasn’t over. A furious Fulton County, Ga., Superior Court Judge Constance C. Russell Thursday declared a mistrial and threatened jurors with contempt. The jury had listened for seven days to a complicated case involving a dispute between former Hayes Chairman Dennis C. Hayes and former company vice presidents Gary J. Franza, John S. Stuckey and Mikhail Drabkin. The suit initially was filed in 1996. Hayes Microcomputer Products v. Franza, No. E47303 (Fult. Super. mistrial April 3, 2001). On Thursday morning, a bailiff told the judge he overheard two jurors on break discussing a videotaped deposition. He testified to what he had heard, and Russell called one of the two jurors into the courtroom. The judge told the juror that she understood that some jurors had been discussing the case, and asked what the discussions had been about. “Just generally our opinions,” the juror said. “What we think about the case.” The discussions had been continuing since Wednesday at least, the juror said, but added she wasn’t sure how long jurors had been talking about the trial. “We’ve probably all been making comments,” she told the judge. The judge asked lawyers for both sides what they wanted her to do. Atlanta-based Rogers & Hardin’s John J. Almond, representing Franza and Stuckey, asked the judge to upbraid the jury in open court. “I’m always troubled by jurors not following the court’s directions,” he said. He urged Russell to “admonish [the jurors] in the strongest possible terms.” Hayes’ lawyer, Robert L. Shannon Jr. of Atlanta-based Hall, Booth, Smith & Slover, was more adamant. He told Russell the juror’s comments worried him. The defense, he said, had only completed one witness’s testimony and half of another’s. “My concern is that they have formed opinions at this point,” he said, and moved for a mistrial. Russell then called the jury into the courtroom and asked the members if they had been discussing their opinions about the case with each other. Almost every juror nodded affirmatively, and one said “Yes, your honor.” Russell’s eyes narrowed, and she leaned over the bench toward the jury. “You were given a direct order by the court,” the judge told the jurors, not to discuss any aspect of the case with anyone — including each other — until the court ordered them to do so. She then declared a mistrial. Hayes and his lawyers barely twitched at their table. Almond’s clients slumped forward, shoulders hunched. The parties had waited more than five years for their day in court, Russell told the jurors, and they had a right to a jury that had not formed opinions before the close of evidence. “It is unfair to them to go forward with this trial,” she said. Russell ordered the jury to return to court at 9 a.m. today to explain “why [they] should not be held in contempt.” The judge then sent the jury out, saying, “Nine o’clock. Every one of you.” After the jury left, Almond objected to the judge declaring a mistrial. “Perhaps there’s some way to salvage this case,” he said. The judge responded that she sincerely hoped he could find a way to do so, but that she didn’t see one. Even exploring what opinions the jurors had formed would create problems, she explained. “If you attempt to find out what opinions they’ve formed, you’ve affected the case,” she said.

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