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Facing a ‘clean plaintiff’ in a tobacco action CASE TYPE: Products liability CASE: Routh v. Philip Morris, No. 00-3030 CA 11 (Miami-Dade Co., Fla., Cir. Ct.) PLAINTIFF’S ATTORNEYS: Stuart R. Silver of Kluger, Peretz, Kaplan & Berlin of Miami; and Steven K. Hunter of Angones, Hunter, McClure, Lynch, Williams & Garcia of Miami DEFENSE ATTORNEYS: Jonathan M. Engram, of the Winston-Salem, N.C., office of Womble Carlyle Sandridge & Rice; and Kenneth J. Reilly, of the Miami office of Shook, Hardy & Bacon of Kansas City, Mo. JURY VERDICT: For the defense Gail Routh, 54, was suffering from lung cancer, but she’d never smoked a cigarette. She sued cigarette makers, blaming her cancer on 20,000 hours’ exposure to secondhand smoke in 27 years as a U.S. Airways flight attendant. Routh, who had two-thirds of her right lung removed and was given 12 months to live, made an appealing plaintiff: “When you’ve flown and you’ve had a wonderful flight attendant, this was that person,” said Jonathan M. Engram of Womble Carlyle Sandridge & Rice, who represented R.J. Reynolds Tobacco Co. Routh was also a “clean” plaintiff. Jurors in other tobacco cases have shown that they expect smokers to shoulder some responsibility for cigarette-related diseases, but nonsmokers are more easily viewed as innocent victims. The defense began trial in September burdened by the terms of a 3-year-old settlement of a flight attendants’ class action in Miami against tobacco companies. Individual plaintiffs no longer had to establish that cigarettes were defective and that the defendants breached warranty and failed to warn of tobacco’s dangers. All they had to prove was medical causation and damages. Establishing that didn’t seem difficult. “Every public health author has decreed that secondhand smoke causes lung cancer,” Engram said. “We had to get jurors to set aside knowledge that cigarette smoke causes cancer.” The jury found that secondhand smoke can cause cancer — which Routh’s attorney, Stuart R. Silver, noted was a first — but the panel decided after five hours of deliberations that passively inhaled cigarette smoke wasn’t the cause of Routh’s lung cancer. “In this case, the jury got halfway there, not all the way there,” said Silver of Kluger, Peretz, Kaplan & Berlin. The defense introduced studies showing that cancer rates in flight attendants are actually lower than what would be expected. Those studies aren’t easy to find; researchers have become less interested in secondhand smoke as cigarettes have been banned from public places. International flights have been smoke-free since 1996, six years after U.S. domestic flights. Engram called medical experts to testify that Routh’s cancer, bronchioloalveolar carcinoma, was the kind most often seen in nonsmokers. The plaintiff’s experts claimed that the tumor was adenocarinoma, which is linked to smoking. Engram told jurors that Routh had a greater risk for developing lung cancer due to a pulmonary genetic defect that had killed her mother and afflicted other close relatives. The plaintiffs claimed that Routh was merely a carrier of the defective gene. Routh’s was the sixth flight attendant case to go to trial. A 2002 trial resulted in a $5.5 million award for sinusitis claims that was reduced to $500,000 by the judge. One case ended in a mistrial, and there were three defense verdicts. The plaintiff’s motion for a new trial was denied. Daring the prosecution to put client on stand CASE TYPE: Drug possession CASE: U.S. v. Dow, No. 03-20178-CR. (S.D. Fla.). PROSECUTORS: Assistant U.S. attorneys Benjamin Greenberg and Gerald Greenberg DEFENSE ATTORNEYS: David Oscar Markus, of Hirsch & Markus; and Brian Tannebaum of Tannebaum, Planas & Weiss, both of Miami JURY VERDICT: For the defense The evidence against Frances Dow stank. A stomach-wrenching odor filled the federal courtroom in Miami during her four-day trial. The stench emanated from 15 pounds of plastic-wrapped cocaine that Dow was accused of trying to sneak into the country. The block of cocaine made a damning exhibit against the British West Indies Airways flight attendant. Dow, 33, insisted that she had no idea that a staggering amount of contraband was tucked beneath the false bottom of the bag she’d agreed to carry from Trinidad for a friend. Prosecutors claimed otherwise, noting that she lied to U.S. Customs officials in Miami about owning the bag and packing it herself. Defense attorney David Oscar Markus felt that Dow was so persuasive that she had to testify. He took the risk of waiving her right to silence and daring the prosecution to put her on the stand during their case. They took him up on his challenge, calling the 13-year flight attendant as their last witness. Assistant U.S. attorneys Benjamin Greenberg and Gerald Greenberg scoffed at Dow’s insistence that she never suspected the heavy bag she was carrying contained anything suspicious. Even Markus agreed that the amount of cocaine — the size of a shopping bag, with a street value of as much as $500,000 — called her denial into question. “That’s always the hardest part of a federal trial,” he said. “No one’s ever seen 15 pounds of coke slapped on a table.” He maintained that the cocaine’s odor intensified during months in a humid Miami warehouse before trial. Dow remained steadfast that she was conned by her friend. She spent several hours testifying and “charmed the jury,” Markus said. She told how she participated in a sting that netted him in a Miami hotel room. The friend told federal drug-enforcement agents that Dow knew nothing about the cocaine. She was charged with importing 15 pounds of cocaine, conspiracy to import, possession with intent to distribute and conspiracy to possess with intent to distribute. The mother of two faced at least 10 years in prison if convicted on even one of the charges. Prosecutors offered her a few years in a minimum-security prison in exchange for a guilty plea to a single charge. Dow refused. “From the first day I met her, she said she wasn’t pleading,” Markus said. The Greenbergs referred questions about the case to a spokesman for the U.S. Attorney’s Office in Miami. He declined to comment. The jury deliberated for 12 minutes before returning acquittals on all counts. The verdict came so quickly that Markus feared he’d lost. He was delighted to find otherwise. “These are the cases that should go to trial,” he said. “The government has a weak case but your client is innocent.” Calling Muslims to the stand as Iraq war looms CASE TYPE: Negligence CASE: Guidi v. InterContinental Hotel Corp., No. 95-Civ.-9007-LAP (S.D.N.Y.) PLAINTIFF’S ATTORNEYS: Harvey Weitz and Veronica A. Albanese of Schneider, Kleinick, Weitz, Damashek & Shoot of New York DEFENSE ATTORNEYS: Alan Kaminsky and Harry P. Brett of Wilson Elser Moskowitz Edelman & Dicker of New York; and Robert Wallace of the firm’s Washington office JURY VERDICT: For the defense Strolling past military police and security guards, a man entered the InterContinental Hotel in Cairo, Egypt, on Oct. 23, 1993. He made his way into the dining room of the five-star hotel, pulled a gun from his jacket and killed five people. The families of two American victims, and another American wounded in the attack, sued for negligence. They claimed the hotel failed to take adequate security measures to protect its guests despite receiving warnings from the Egyptian government about an increased threat of terrorist attacks. Defense attorney Alan Kaminsky wanted to try the case in Egypt, where potential damages would have been much lower. After losing the issue in the 2d U.S. Circuit Court of Appeals, he had to try the case before a panel of New Yorkers. As the U.S. readied for the war with Iraq last spring, Kaminksy found himself trying to persuade a federal jury that InterContinental should not be held accountable for a Muslim terrorist’s murder spree. His witnesses included several Muslims who spoke only Arabic. Several jurors had friends or family who died in the Sept. 11, 2001, terrorist attacks on the World Trade Center. “I was very concerned with the atmosphere in the country at the time,” said Kaminsky of Wilson Elser Moskowitz Edelman & Dicker of New York. After four weeks of testimony, the jury deliberated for two days before finding for the defense. The plaintiffs had sought $125 million in their lawsuit and requested $15 million to settle the case. They refused a $3 million settlement offer, said their attorney, Harvey Weitz of Schneider, Kleinick, Weitz, Damashek & Shoot of New York. Kaminksy argued that security measures employed by InterContinental — posting guards at the entrances and using handheld metal scanners on incoming packages and luggage — exceeded those at other five-star hotels in Egypt. Backing him up were stellar experts, including a former security director at the U.S. embassy in Cairo and the former director of operations for the CIA’s Near East and Asia division. The CIA officer was “a powerful, powerful witness,” Weitz said … . Even I liked him, notwithstanding that I knew he was, frankly, exaggerating in all respects.” The plaintiffs’ lawyer said the case was won in pretrial motions. Defense attorney Robert Wallace argued successfully that the case should be tried under Egyptian law, which eliminated claims for punitive damages and prejudgment interest. It also allowed for the bifurcation of liability and damages phases. Kaminsky said his case got a boost from courtroom technology that integrated documents, exhibits, videotaped depositions, maps and videos of downtown Cairo. “It was so state-of-the-art that it makes me never want to try a case again without it,” he said. The case is being appealed. A veteran diver takes on a diving injury case CASE TYPE: Products liability, negligence CASE: Bolour v. Santa Barbara Aquatics, No. 01035364 (Santa Barbara Co., Calif., Super. Ct.) PLAINTIFF’S ATTORNEY: Mohammad R. Nadim, Law Office of Mohammad R. Nadim, Santa Monica, Calif. DEFENSE ATTORNEYS: Rick Lesser and Michele Nelson Bass, Lesser & Associates, Redondo Beach, Calif.; and Tom R. Shapiro, Monroe & Shapiro, Los Angeles. JURY VERDICT: For the defense Rick Lesser’s phone number is 1-800-DIVE-LAW. His license plate is DIVE LAW. His Web site, perhaps the only law firm site that links to beach cams, is www.divelaw.com. Lesser’s four decades of diving experience and nearly 30 years of diving defense work served him well when he went to trial against a man claiming brain damage from a diving accident. “This case always smelled funny to me,” said Lesser of Lesser & Associates of Redondo Beach, Calif. “You can smell when an accident just doesn’t seem right.” The plaintiff, dry cleaner Faramarz Bolour, claimed that his diving equipment — made by Lesser’s client, SeaQuest — malfunctioned about 10 minutes into his dive in 24 feet of water. Forced to make a rapid ascent, he suffered an arterial gas embolism that left him brain-damaged. To support his claim, he had photos that he said were taken at the beach on the day of the injury and the manual he’d received at the dive shop in 1997 when he bought the defective inflator. Lesser had his suspicions about both. The photos showed few people behind Bolour and his diving buddy at 11 a.m. on a sunny Sunday in July 1999. But Lesser thought that the beach at Refugio State Park should have been more heavily populated. Lifeguards’ records proved him right. They estimated about 3,000 people at the beach at the time Bolour claimed the photos were taken. The SeaQuest manual also caught Lesser’s eye. He noticed that it had a 1996 copyright and listed the company’s address as Cousteau Court in Vista, Calif. But he knew that the company, a long-time client, hadn’t moved to that site until late 1998. Lesser’s research showed that the manual Bolour claimed he’d received in 1997 was actually printed in 1998. Yet in depositions and on the stand, Bolour refused to acknowledge the growing inconsistencies. The 18-day trial was riddled with witnesses for the plaintiffs contradicting previous testimony. “There was so much impeachment, it was too good to be true,” said Tom R. Shapiro of Monroe & Shapiro in Los Angeles, who represented the dive shop. The defense had offered Bolour $65,000. He wanted $2 million. His attorney, Mohammad R. Nadim, asked the jury for $10 million. The jury deliberated for five hours after hearing 18 days of evidence. It found 10-2 for the defense on product defect and 11-1 for the defense on negligence. Nadim of the Law Office of Mohammad R. Nadim in Santa Monica, said the defense won “by being able to distract the attention of the jury from the case itself.” He said he will appeal. And Lesser? “He is a disgusting man,” Nadim said. “He’s a sleazeball.” Parachuting into a job to tackle a high-profile foe CASE TYPE: Products liability CASE: Haltom v. Bayer Corp., No. 02-60154-4 (Nueces Co., Texas, Dist. Ct.) PLAINTIFF’S ATTORNEYS: Mikal Watts and Chris Pinedo of the Watts Law Firm, Corpus Christi, Texas; and Rickey Brantley of Jose, Henry, Brantley & Keltner of Fort Worth, Texas DEFENSE ATTORNEYS: Philip Beck of Bartlit Beck Herman Palenchar & Scott of Chicago; and Gerry Lowry of Fulbright & Jaworski of Houston JURY VERDICT: For the defense Philip Beck didn’t expect to be defending drug maker Bayer Corp. against charges that its recalled cholesterol-lowering drug, Baycol, caused an elderly patient’s degenerative muscle disorder. The attorney originally handling that case, however, had a father who was gravely ill, and another trial Beck was preparing for had been postponed. So he headed to Corpus Christi, Texas, considered a pro-plaintiff locale, to face high-profile attorney Mikal Watts on Watts’ home turf. “Basically, it was kind of like parachuting in with a week or 10 days’ notice and trying this case with all the publicity surrounding it,” said Beck of Chicago’s Bartlit Beck Herman Palenchar & Scott. The publicity stemmed from the fact that the Baycol case filed by Hollis Haltom, 82, was the first to go to trial. Bayer had voluntarily withdrawn the drug from the U.S. market in 2001 after users complained that one of its side effects was a condition called rhabdomyolysis, which causes muscle degeneration or paralysis. Plaintiffs attorneys claimed 100 deaths had been linked to the drug. Bayer’s policy had been to settle claims, and it tried that approach with Haltom, who began using the drug three months before the recall. Bayer offered him $250,000. Watts wouldn’t settle unless Bayer resolved all 1,500 of his Baycol cases, Beck said. Bayer refused. That impasse brought the case to trial. The plaintiff’s attorneys built their case on company memos and documents that appeared to echo concerns about Baycol’s safety. They claimed Bayer knew the drug was dangerous at the dosage level Haltom received and that its warning labels were inadequate. Beck’s strategy entailed having company officials “patiently and laboriously” explain to the jury the context of scores of company documents introduced by the plaintiffs. “It was largely a case of [the plaintiffs] taking snippets of documents and misrepresenting them,” he said. Following 2 1/2 days of deliberations, jurors rejected Watts’ request for more than $550 million in damages. Plaintiff’s attorney Chris Pinedo said the verdict surprised him because Bayer admitted its drug caused Haltom’s injuries. “The jury somehow got confused on the issues,” said Pinedo of the Watts Law Firm. That verdict will not be appealed, but Pinedo said Haltom has a case pending against Bayer A.G., Bayer’s parent, and GlaxoSmithKline PLC, which helped promote Baycol and provided Haltom’s doctor with samples. Beck credited the Haltom victory and another win in Mississippi last spring with prompting plaintiffs’ lawyers to settle. About 2,000 Baycol cases have been resolved confidentially since Haltom’s March 2003 verdict. Another 10,000 are pending. A tough case, and a firm falling apart, to boot CASE TYPE: Patent infringement, theft of trade secrets CASE: Mentor Graphics v. Cadence Design Systems, nos. C99-5464-SI, C00-3291-SI, C00-1030-SI, C02-1426-SI (N.D. Calif.) PLAINTIFF’S ATTORNEYS: David A. York and Anthony I. Fenwick of the Menlo Park, Calif., office of Latham & Watkins; and Steven M. Bauer of the firm’s San Francisco office DEFENSE ATTORNEYS: James C. Brooks of the Los Angeles office of Orrick, Herrington & Sutcliffe; Lisa C. Ward of the firm’s Orange County office; Steven D. Hemminger of the Palo Alto, Calif., office of White & Case; and Frederick Brown, formerly at Orrick’s San Francisco office, now in the San Francisco office of Gibson, Dunn & Crutcher JURY VERDICT: For the defense Defense attorney James C. Brooks knew that winning his patent infringement case would be a struggle. But when four of six mock juries he convened sided with the plaintiffs, who were seeking $1 billion in damages, he felt even edgier. Brooks had spent a lot of time feeling anxious, and with good cause. His law firm, Lyon & Lyon of Los Angeles, was disintegrating as his team was preparing for trial. The judge refused to postpone the trial, leading what remained of the group to wonder if they’d continue defending the lawsuit and where they’d wind up. The case looked bleak, too. Mentor Graphics Corp. and Cadence Design Systems Inc. had been locked in litigation for nearly a decade. The latest battle, which brought the parties to federal court in San Francisco, was a patent dispute involving emulation systems technology. The costly, highly specialized software is used to test computer chip designs. The judge ruled in pretrial proceedings that Cadence, Brooks’ client, had infringed two of three patents at issue and that the jury could be told about that infringement. The judge also invalidated three Mentor patents, but the jury was not permitted to know that. “That was the nightmare scenario for Cadence counsel,” said Brooks, who spent eight years on the litigation. The defense team did find a home four months before the trial. Six members of the team were picked up by Orrick, Herrington & Sutcliffe, but other key players had to be replaced. Orrick’s information technology department hustled to integrate more than 2 million pages of documents from Lyon & Lyon. Defense lawyers went to trial with 1,800 exhibits because they didn’t have time to trim that number to about 300. During the weeklong trial, Cadence’s attorneys argued that despite the infringement rulings, Mentor’s patents were written so broadly that they covered both companies’ technologies and were therefore invalid. Jurors spent more time in deliberations than they did in hearing the case. They later told Brooks that they had resolved the trade secret dispute in Cadence’s favor in a day. They spent the other eight days haggling over the patents’ validity. Mentor attorney David A. York of Latham & Watkins said: “The jury saw it as a contest between two companies at each other’s throats for years. That’s not a happy thing for a plaintiff.” Brooks said the defense owed its victory in part to humanizing what could have been a plodding trek through esoterica. “It wasn’t just a cut-and-dried case about technology,” he said. “It was about real, live people who’d been accused of stealing stuff. If we had simply focused on the technology, we’d have made a huge mistake.” Cadence and Mentor announced last fall that they’d resolved all litigation between them. They agreed that neither would sue the other over emulation technology for seven years and that Mentor would pay $18 million to Cadence. Finding delicate balance in injured girl’s sad tale CASE TYPE: Products liability CASE: Nichols v. General Motors, No. 94-VS-89026D (Fulton Co., Ga., State Ct.) PLAINTIFF’S ATTORNEYS: Gerald P. Word of Word & Simmons of Carrollton, Ga., and Peter Blackford of Blackford & Blackford of Austell, Ga. DEFENSE ATTORNEYS: Robert D. Hays, Halli D. Cohn and Matthew S. Harman, of King & Spalding of Atlanta JURY VERDICT: For the defense Robert D. Hays knew jurors’ hearts would go out to Genie Nichols. The Atlanta high school student was determined to qualify for the 1996 Olympics, and she’d been training rigorously to shave a few hundredths of a second off her time in the 200-meter butterfly swim. Her Olympic hopes were dashed in 1995, however, when her car crashed into a tree as she swerved to avoid a dog. The brain damage and injuries she received left her unable to compete, work or function on her own. The internationally ranked swimmer sued General Motors Corp., claiming that the seat belt in her 1990 Chevrolet Beretta was defective because it failed to restrain her. Her attorneys sought at least $5 million for pain and suffering and damages. The case was tried in Fulton County, Ga., considered a hostile venue for automotive defendants. In the past decade, juries have made several eight-figure awards to plaintiffs suing carmakers. Hays, who successfully defended General Motors against Nichols’ suit, won the case by delicately balancing compassion for her misfortune with a repeated emphasis on the jury’s duty to reach a verdict based on evidence alone. He tackled the issue of juror sympathy in individual voir dire. That measure of privacy allowed him to ferret out biases against big corporations, detect pro-plaintiff leanings and get “a personal commitment from jurors to set sympathy aside.” He also opted not to cross-examine the teen’s experts on damages. Instead, he urged jurors to note how much time her lawyers devoted to calculating an award. “If we’re not contesting damages, only liability, why are they bringing so many witnesses on damages?” he asked. The teen’s attorneys built their case on the testimony of experts who said Nichols’ seat belt held initially and then slackened, an occurrence dubbed “skip-lock.” Hays of Atlanta’s King & Spalding insisted that Nichols wasn’t wearing a seat belt at the time of the collision, but he avoided confronting her. “We were not eager to accuse her of being a liar,” he said. Even if she had been belted, General Motors’ experts testified that there was no evidence of the “skip-lock” phenomenon in the crash. Nichols’ attorney, Gerald P. Word of Word & Simmons in Carrollton, Ga., could not be reached for comment. Jurors didn’t hear about a recall in the early 1990s of 800,000 Berettas and Corsicas due to a seat belt defect. General Motors got a welcome break when an expert for the plaintiff conceded in deposition that there was no evidence that the teen’s car had that defect. The judge then barred trial testimony about the recall. Suit against gun makers watched by nation CASE TYPE: Public nuisance CASE: NAACP v. American Arms Inc., nos. 99-Civ-3999 (JBW) and 99-Civ-7037 (JBW) (E.D.N.Y.) PLAINTIFFS’ ATTORNEYS: Mathew Nosanchuk of the Violence Policy Center, Washington; Elisa Barnes of the Law Office of Elisa Barnes, New York; Monica Connell, formerly at Barnes’ office, now with the New York State Attorney General’s Office; Sayre Weaver, Education Fund to End Handgun Violence, Brea, Calif.; Dennis Hayes, NAACP general counsel; and Angela Ciccolo of the general counsel’s office DEFENSE ATTORNEYS: Thomas E. Fennell and Michael L. Rice of the Dallas office of Jones Day; John F. Renzulli of Renzulli, Pisciotti & Renzulli of New York; James P. Dorr of Wildman, Harrold, Allen & Dixon of Chicago; and David R. Gross of Saiber Schlesinger Satz & Goldstein of Newark, N.J. JURY VERDICT: (Advisory) For the defense The National Association for the Advancement of Colored People (NAACP) took handgun manufacturers and distributors to trial in Brooklyn, N.Y., accusing their products of creating a public nuisance that disproportionately harmed African-Americans. The case was closely watched because it sought to hold the handgun industry responsible for gun violence and to extract millions of dollars in injunctive relief. A number of municipalities around the country had filed similar suits against gun makers, and this was the first such case to go to trial. After a six-week trial in federal court, jurors deliberated for five days before finding unanimously that 38 of the 68 defendants had no liability. Seven were found not liable by a 10-2 vote. The other 23 were found not liable by a 9-3 vote, but those were entered as “no verdict” because a 10-juror minimum did not reach the same decision. The jurors were not told that they were serving in an advisory capacity. Defense attorney Thomas E. Fennell of Jones Day said the verdict was no surprise: “I thought we ought to win the case.” But attorneys for the plaintiffs contend they’re the real winners. “I don’t think the gun industry had a great deal to celebrate with this case,” said Mathew Nosanchuk, litigation director of the Violence Policy Center in Washington. He points to Judge Jack Weinstein’s 100-page-plus decision and findings of fact, which is being appealed by the defense. Nosanchuk said the judge clearly supported the plaintiff’s claims but explained that it faltered by failing to show special injury. “The jury’s verdict is irrelevant,” Nosanchuk said. “The decision in the case is the judge’s decision.” Fennell said he is appealing to prevent Weinstein’s treatise from being used for collateral estoppel in similar cases. “He addressed issues that were not even addressed in court,” he said. “He had findings that there was no evidence on.” Lawsuits filed in New Orleans, Cincinnati, Detroit, Miami, Philadelphia, Atlanta, Boston and New York state alleging that guns are a public nuisance have been dismissed voluntarily or on appeal. Suits are pending in Cleveland; Gary, Ind.; and New York City, which is also before Weinstein. The NAACP trial revolved around statistics, including those that the plaintiffs touted that they were able to obtain from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives that tracked guns used to commit crimes. The lawyers for gun distributors, importers and manufacturers claimed that their clients comply with strict federal weapons regulations and should not be held responsible for crime that results from the unintended use of handguns. Though the defense knew it ultimately had to persuade Weinstein, Fennell said his team prevailed by keeping its focus on winning over the jury. Attorney overcomes gruesome murder facts CASE TYPE: Murder CASE: State v. Durst, No. CR-1901 (Galveston Co., Texas, Dist. Ct.) PROSECUTORS: Galveston County District Attorney Kurt Sistrunk and Assistant District Attorney Joel Bennett DEFENSE ATTORNEYS: Dick DeGuerin of DeGuerin Dickson & Hennessy; Michael Ramsey of the Law Office of Michael Ramsey; and Chip Lewis of the Law Office of Chip Lewis, all of Houston JURY VERDICT: Acquittal Morris Black, a loner and drifter, was shot in the face, dismembered and dumped in Galveston Bay. The man who pulled the trigger and then hacked up the body was a neighbor named Robert Durst who had been passing himself off as a mute woman. Despite the gruesome crime and Durst’s admission that he was the gunman, a Texas state jury acquitted him of murder. The victory was a remarkable achievement for a stellar defense team, which Durst-an heir to a New York real estate fortune-could easily afford to hire. Defense attorney Dick DeGuerin said the key to the acquittal was the assembling of a jury that could consider the shooting as self-defense. “I saw it as a problem of getting the jury to focus on how the death occurred,” he said, “rather than the other bizarre circumstances.” Those bizarre circumstances included what brought Durst to Galveston — he said he left New York because a district attorney was reopening the investigation into his first wife’s mysterious disappearance in 1982 — and what happened afterward. After Durst’s disposal of Black’s dismembered corpse and arrest, he skipped town on $300,000 bond and was the subject of a 45-day national manhunt before his arrest in Pennsylvania for stealing a chicken salad sandwich and a newspaper. The defense team honed its case before mock juries, who “could intellectually understand how a person who was not guilty could get frightened and flee … . The jury ultimately was able to concentrate on how Morris Black died,” DeGuerin said, “and there was no proof he died any other way than how Durst had said.” DeGuerin of DeGuerin Dickson & Hennessy of Houston explained to jurors that Durst shot Black, 71, in self-defense as the men struggled over a .22-caliber handgun during an argument in Durst’s apartment. The state’s strategy of charging Durst only with first-degree murder, punishable by 99 years behind bars, was ideal for the defense. The jury was precluded from finding him guilty of any lesser crimes. “We saw it as an all-or-nothing gambit because if the jury had a compromise position, given all the stuff before and after, they might have gone with that,” DeGuerin said. Galveston District Attorney Kurt Sistrunk declined to comment on the verdict because bail-jumping charges against Durst are pending. Durst, 60, remains in jail in Galveston on $2 billion bond.

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