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Cathy Fleming remembers the instant she became a fan of letting jurors pose questions to witnesses. It was on June 20, 2000, just after she had cross-examined Teaneck, N.J.’s police chief on behalf of her client, a lieutenant suing for sexual harassment. Fleming was no rookie. A former assistant U.S. attorney, she had been trying cases for 20 years. She was confident that Chief Donald Giannone had made damaging admissions, but she couldn’t be certain that the jury was wowed. Had she convinced the eight panelists that the chief, by his own statements, had helped prove that her client, Diane Mancini, had been the target of lewd and cruel harassment? And that higher-ups had not only ignored her complaints but had retaliated against her? Under normal circumstances, no lawyer knows the answer to such questions until the verdict comes in. But this wasn’t a normal trial. It was part of an experimental program to test juror involvement in proceedings. Bergen County Superior Court Judge Charles Walsh had permitted the jurors to take notes and submit written questions, which he posed to the witnesses in paraphrased form after sidebar consultation with the lawyers. Before the trial, Fleming had been skeptical about the process. But the instant she saw the written questions to the chief that spring day, she became a convert. First, the questions showed she had a winner of a case. Juror No. 8, for example, a school secretary from North Arlington, N.J., named Marilyn McGrath, had submitted a pointed question that suggested she wasn’t buying Giannone’s defense. In effect, McGrath scribbled on her steno pad in question form, wasn’t Giannone merely trying to switch the blame to others? Just as important to Fleming, the questions to Giannone permitted her to re-open her cross-examination with follow-ups that focused precisely on the issues she now knew to be important to the jurors, including whether a number of women had quit the police force in Teaneck. “At the beginning of the trial, when I heard the jurors were going to be allowed to ask questions, I was reluctant,” Fleming said in an interview last week. She recalled that she feared disclosure of information she wanted to keep out of the trial. “Now, I’m an absolute convert to the system.” Fleming’s conversion isn’t surprising, given the outcome. On June 27, 2000, after asking 63 questions during the 13-day trial, the jurors in Mancini v. Teaneck, Ber-L-5491-96, awarded the plaintiff $1.5 million: $500,000 for her hostile environment claim, $500,000 for a retaliation claim and $500,000 in punitive damages against the township, the police department, Giannone and a captain. It was one of the biggest employment discrimination verdicts in New Jersey last year, even after Walsh reduced it. On Dec. 8, he threw out the punitive award and reduced the compensatory award to $625,000. He also ordered the defendants to pay $646,093 in fees and costs to Fleming, a partner in the New York office of Philadelphia’s Wolf, Block, Schorr & Solis-Cohen, and to her co-counsel, Thomas Jardim in the Newark office of New York’s Fischbein Badillo Wagner Harding. Defense lawyer Barry Asen, a partner in New York’s Roberts & Finger, says he doesn’t know whether questioning by the jurors affected the outcome. He is appealing, particularly on grounds that Walsh permitted inadmissible evidence of allegations that occurred too far in the past. But Fleming and Jardim think juror involvement helped them win, and juror McGrath also thinks it’s possible. “It was pretty clear to us that she proved the case, but the questioning made us even more sure,” she said last week. “Some people were on the fence, and it may have persuaded them.” The trial was one of 120 proceedings before 11 judges last year in which jurors were permitted to ask questions. The state supreme court’s Civil Practice Committee is drawing up a report that could help the judiciary decide whether juror involvement should be made permanent. Judges said in interviews last July that they thought the process helped jurors understand the testimony and didn’t lengthen trials inordinately. Attorneys, on the other hand, expressed concern that their cases might be undermined by jury questions that strayed into territory the lawyers wanted to keep off limits. Judging from what happened in the Mancini case, jury questioning might have an additional effect that could be worrying to defense lawyers: Juror involvement might make it more difficult for losing defendants to win post-verdict reversals on grounds that the jury didn’t understand the case. In his opinion denying Teaneck a new trial, Walsh said, “having observed the jury, the Court believes that there was more than sufficient evidence to support the hostile work environment and retaliation claim.” That’s boilerplate, but the next sentence isn’t. “Moreover, the jury, which asked questions throughout the trial, demonstrated that it carefully considered all the evidence presented by the parties,” he added. According to the evidence introduced by Fleming, Mancini was harassed from the time she became Teaneck’s first woman police officer in 1981. The chief at the time said she would advance more quickly if she slept with him; male officers watched pornographic movies during their shifts; and she was given inferior assignments, she testified. She was referred to as “missy” and “dearie,” and smutty magazines and lewd cartoons were left where she could see them, according to the evidence. Mancini also alleged that supervisors retaliated against her for writing a report in 1996 that said a captain in the department might have sexually harassed three clerical workers. The defense denied the allegations. As Walsh summed it up, the defense contended that her accusations were “figments of her imagination or, at most, isolated events.” If bad things happened to Mancini, it wasn’t the supervisors’ fault, or the township, the defense said. At the start of the trial, Walsh told the jurors to ask as many questions as they wanted. “Don’t try to save the county any money,” he joked. “I don’t care if you ask one or 100 questions; that’s up to you.” Of the 63 questions that eventually were asked, many showed that the jurors wondered whether managers of the town and the department had procedures in place to prevent what Mancini was claiming. The jury, which had heard testimony that pornographic magazines were left in Mancini’s squad car when she came on duty, asked detailed questions about whether the cars were cleaned after each shift. Panelists also wanted to know from Town Manager Gary Saage whether he supervised the police (the answer was yes) and whether the rank and file underwent sensitivity training (the answer was no). Fleming followed with questions that showed that supervising officers alone received such training. For Chief Giannone, the crucial questioning from the jury came after he had mused during a lengthy cross-examination about his investigation of lower officers’ alleged sexual harassment that defendants in cases sometimes try to blame others. That statement, Fleming recalls, prompted furious note-taking by Juror No. 8, and within minutes, after an off-the-record sidebar, Walsh popped the juror’s question to the chief. “You said it was normal in your experience for defendants to try to switch the blame,” Walsh asked him, paraphrasing the jury question. “Are you doing that in this instance?” Giannone said he wasn’t. He also was asked whether he had ever told Mancini and an officer with whom she was having problems to “have coffee and work it out?” Looking back, Fleming says the questioning helped the lawyer learn what the jurors didn’t understand and insights into where the jurors were headed. And co-counsel Jardim concludes: “I think it’s a helpful process for the lawyer, in understanding the testimony. The most important thing is it showed the jury was totally focused.”

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