The Will and Grace Case
Dean Hartwell served as a juror and foreperson in the 2007 case Kohan v NBC. David Kohan, the co-creator of the hit TV show, and the rest of the plaintiffs sued NBC Studios and NBC for breach of contract and fraud for matters related to the "Will and Grace." After a three-and-a-half month trial, the jurors came to a verdict worth approximately $49,000,000 and a unanimous finding of fraud (worth potential punitive damages). Hartwell submitted this verdict on behalf of the jury.
The following day, NBC's attorneys, claiming they had just learned he was the foreperson, said they Googled him and found excerpts on his website archives that they used to make a motion for his dismissal and for a mistrial They stated that he had not revealed a bias against NBC at voir dire.
Judge Warren Ettinger called Hartwell into his chambers with the attorneys present. After a lengthy conversation, Ettinger removed Hartwell, the parties settled and then Ettinger dismissed the case. The official transcript shows the day's conversations in court, including the discussion between the judge and Hartwell. Below is what Hartwell has to say about this experience:
Judge Warren Ettinger called Hartwell into his chambers with the attorneys present. After a lengthy conversation, Ettinger removed Hartwell, the parties settled and then Ettinger dismissed the case. The official transcript shows the day's conversations in court, including the discussion between the judge and Hartwell. Below is what Hartwell has to say about this experience:
What if I had objected to the Judge's questions?
HERE ARE MY OTHER WRITINGS ABOUT THE CASE:
Below I have reprinted an article I wrote days after my dismissal.
None Dare Call It Reason (4/29/07)
Recently, I served on a jury for three-and-a-half months in the “Will and Grace” case, just settled between plaintiffs David Kohan and Max Mutchnick (who co-created the show) and their talent agent, Scott Schwartz and defendants NBC and NBC Studios. Before the settlement, the jury, of which I was the foreperson, reached a verdict and was prepared to deliver it after deliberating for eight days.
The judgment went for the plaintiffs on twelve of the fourteen verdict questions, awarding them approximately $49 million and a chance for punitive damages. The plaintiffs had presented a strong factual case and we mostly voted for them unanimously, even though only nine votes were needed per question except for the punitive damage question, which required all twelve votes.
While we were waiting in the jury room, the courtroom assistant asked me to step outside to the hallway. She led me to the judge’s chambers, where several people, including the attorneys of the parties, the courtroom reporter and the judge waited.
I didn’t know what they wanted to talk about. I took a seat facing the judge, Warren Ettinger. He began by saying, “Mr. Hartwell…” which I took as a bad sign.
It became clear to me that in-chamber conversations with a judge are meant to be one-sided. For the next forty minutes, he read excerpts of an essay I had written two years ago (May 2005) and asked me questions about it.
The essay, Corporate Media Favors Incumbents (5/19/05), makes mention of NBC as one of many sources of the corporate media that miss certain stories of importance. I listed stories that I thought the corporate media should have covered then and called other stories, like the story of a runaway bride, “phony.” I also named ABC, CBS and FOX and their respective parent companies.
As for the article, I said the news media sometimes does not run certain stories at the behest of certain people in government. I could not understand what the news media had to do with the case.
The judge asked why I didn’t bring it up in a jury questionnaire or in response to then-Judge Elias’ questions, which asked:
whether the juror had “any ethical, religious, political, or other beliefs that may prevent you from serving as a juror”
whether there is “anything not covered by this questionnaire that could affect your ability to be a fair and impartial juror”
“having heard the description of the case, is there any member of the panel that feels that he or she cannot give either side or any of the parties a fair trial?”
“Does anyone have any feelings about the nature or subject matter of the case that would make it difficult for you to be a fair and impartial juror?”
“Do any of you have any belief or feelings towards any of the parties, attorneys or witnesses that might be regarded as bias or prejudice for or against any of them?”
I don’t recall precisely which questions he asked, but I told him that when I read the form in January, I held no bias toward any of the parties and held none at the present time. I was always a fair and impartial juror without any beliefs that any of the parties could regard as bias and thus had no reason to answer these questions. Since I was not given much time to reply in the chambers, I thought of other reasons later as well.
First, I have written over two hundred columns for my site. I simply could not recall all of them when I read the questionnaire and listened to Judge Elias and never believed the site to be "critical of corporations in general – and NBC in particular," as Judge Ettinger said to the media later.
Second, to come to Ettinger’s conclusion about my site in a fair and unbiased manner, he would need to read further into my articles. I have created an archive, which allows one to go through articles by topic. Had he looked, he may well have found See You at Gitmo (10/25/06). This column cites MSNBC (a part of NBC) favorably and praises Keith Olbermann, one of its employees, for his on-air work.
To put the idea of whether my bias exists into context, the judge could have considered my column Free Riad (5/13/02) about a friend of mine, a man of Palestinian ancestry, who was illegally detained in Israel back in 2002. I harshly criticize Israel for its actions in this column. That does not make me biased against Israel.
In fact, I wrote even-handed columns about the Palestinian-Israeli conflict in Solution for Peace in the Middle East (3/7/02) and Using PR for Peace (4/3/02). I express sympathy for Israel for being around hostile nations for so long, and I actually compliment President Bush for one of his actions.
I acknowledge my bias against the Bush Administration since I have written several columns opposing its policies. However, the defense’s attempts to translate this bias into bias against NBC fall flat. The very article they gave to the judge to show to me is titled Corporate Media Favors Incumbents.
They selected some of my columns suggesting government agent complicity in 9/11 (failing to acknowledge I cited NBC’s “Meet the Press” as a source. Why would I cite sources I have a bias against? Think about it.).
I never hold NBC responsible for the events of 9/11. They also overlooked an article about the JFK assassination where I question members of the Democratic Lyndon Johnson Administration. I don’t just criticize Bush. It only seems that way because he became the president one month after I started the site.
There was bias at the trial. From my point of view as a juror, the bias belonged to Judge Ettinger. He repeatedly belittled the lead plaintiff attorney, Ronald Nessim (a tough and tenacious lawyer who presented a great case) in front of the jury, at one point sarcastically asking him what law school he went to and threatening him with sanctions unnecessarily. He never scolded the defense for its ubiquitous objections. Instead, he sustained them.
Ettinger was called out of retirement to replace the first judge, Elias, who recused herself. He had nothing to lose by going along with the defense plan to remove me unfairly. How can any action be taken against him if he is going back to retirement, anyway?
If it wasn’t going to be me targeted, it would have been another juror. As the foreperson, I was probably their first choice. So they found something about me on Google to send to the judge. The lead defense attorney, Henry Shields, called it “serendipity.”
Whatever you call it, they amazingly put together a 52-page motion for a mistrial to the judge overnight. They use big phrases like “Mr. Hartwell has a deep seated [sic] distrust of and bias against large media corporations.” They never bother to demonstrate this bias. They acknowledge on the one hand that I have written “dozens” of articles, but they cherry-pick a tiny percentage of them and blow them out of proportion. They smear me with discussion of articles about the attacks of 9/11, and I can’t help but think the term “conspiracy nut” crossed their minds.
Shields even insinuated in the judge’s chambers that I tried to bias the other jurors against NBC but failed to show proof. At least two of my fellow jurors have spoken on this subject since the end of the trial, and they have both insisted that I was not biased. Supposedly, the judge polled all jurors about my alleged bias, but the poll results, which would definitely answer Shields’ concerns, have not been made public to my knowledge.
Last, but not least, when they get around to making a legal argument, the defense compares my attitude to a juror in another case who said of a black plaintiff that “where he came from, they don’t even let a black woman into the courtroom.” I bet they guessed no one would actually read this trash. None dare call it reason.
---
Judge Ettinger never gave me the opportunity to present evidence of my objectivity in discussing NBC in his chambers. He dismissed me and has never responded to anything I have written to him on this matter, including this letter, sent in March 2009:
Two Years of Reflection on Kohan v NBC Summarized in One Short Letter
Dear Judge Ettinger,
The second anniversary of the conclusion of Kohan v NBC is approaching. It took two years of studying our meeting in the chambers, but I have finally summarized the key issue succinctly, and I leave this for you as my last message on Kohan:
If I am ever again asked to answer questions for voir dire, I now know one thing from our experience: the court can and will use anything against me and ignore exculpatory evidence. Your actions showed it and your silence confirms it.
Dean Hartwell
CC: Ronald Nessim (Lead Attorney for Plaintiffs), Henry Shields, Jr. (Lead Attorney for Defendants) and Rosalie Luna, Courtroom Assistant of case
---
The Transcript of the Conversation between the Court and I with My Comments in Bold
THE COURT: Good morning, Mr. Hartwell. Have a seat over here. We need to ask you some questions. It has come to my attention that for some time you have had a website?
[Background question. Looking back on it, I should never have taken a seat. By doing so, I implied consent with the rules – namely, no due process rights – without a word]
JUROR HARTWELL: That's correct.
THE COURT: And you have written some articles?
[Background question. But, as will soon be clear, this is the first of a series of questions that will make it impossible for me to declare my best defense: that I had not remembered any bias or any particular article at the time of voir dire]
JUROR HARTWELL: I have.
THE COURT: And I would like to ask you some questions about the articles.
[States the Purpose of the Discussion. Here the judge implies that it will discuss more than one article]
JUROR HARTWELL: Okay.
THE COURT: First of all, did you have any opinions of NBC Studios or GE before you came in here for this trial?
[The question leaves out one of the defendants, NBC. Also, the reference to GE (General Electric) was not clear because GE was not a defendant in the case.]
JUROR HARTWELL: No.
[As will be shown in a moment, I had written about GE but did not recall the writing. My lack of recollection makes it hard to believe that I held any opinion of them because I stated my opinions on my website.]
THE COURT: Okay.
[This statement appears to allow the judge to re-state the question]
JUROR HARTWELL: I referred to the mass media on occasions.
[My answer did not respond to a question. I was probably gathering my thoughts, and I decided to clarify my answer. This answer should have tipped the judge to multiple articles on the topic]
THE COURT: Yes. And mentioned ABC and NBC by name?
[The question appears to lead me, which is indicative of intent to draw a specific answer. After failing to ask about NBC when he asked me of my opinions, the judge now specifies NBC in asking what appears to be the same question. The switching of names indicates confusion on his part, or intent to confuse me.]
JUROR HARTWELL: ABC and NBC by name.
THE COURT: Yes. Let me give you a quote, if I may. And I hope this is an accurate quote.
[If the judge “hopes” the quote is accurate, it would make sense to allow me to correct it by saying “Correct me if I am wrong” or, better yet, “Let me read you the quote and you let me know if this is accurate and in proper context.”]
This is in an article that you wrote in May of [2005]:
"How can the corporate media (such as ABC, NBC, CBS, and Fox) miss all these stories and annoy us with phony ones. The Walt Disney Company owns ABC, Viacom owns CBS, General
Electric owns NBC. The executives who make decisions on what to air receive huge tax cuts thanks to the Bush administration policies as do the corporations themselves."
That is – it is to that that I referred.
[Bear in mind I arrived at the Chambers with no indication of the nature of the controversy. Furthermore, there are several problems with this question: First, the article was written two years previously. The judge could have asked whether it reflected my opinion at the time of voir dire. Second, the judge failed to acknowledge what the words “these stories” referred to.
Had he read the whole essay, he would have seen that I specified three stories that the corporate media missed and three stories that the corporate media ran instead. Third, how can one paragraph accurately portray the whole opinion of one essay, let alone the juror’s entire set of opinions? Fourth, it now seems obvious that the word “phony” caught his (and the defense team’s) attention. The “phony” news stories included the “Runaway Bride” and Michael Jackson’s criminal trial for child molestation. The judge should have read the whole article or at least asked me what I meant by phony.]
JUROR HARTWELL: Okay.
THE COURT: And I guess my question is: Other than the writings that appear on your website, have you written any other articles?
[A fair question, but not nearly as good as asking if I stated any differing opinions anywhere else on the website. That would have been a chance for me to offer exculpatory evidence.]
JUROR HARTWELL: None that I can recall.
THE COURT: Okay. Before the trial, did you have a feeling about the relationship between the government and the media other than what you have said in your articles?
[Which articles? The court has only named one. He appears to assume that all opinions on the site are the same. Again, he denied me the chance to give exculpatory evidence!]
JUROR HARTWELL: A relationship. A relationship
Where, on occasions, I believe that parts of the mass media do take direction from members of the government, yes.
[I did not state which parts of the mass media. Nor is this statement an indication of bias against those parts of the mass media.]
THE COURT: Okay. Did you have any reason why you didn't reveal that on your questionnaire?
[The judge shows no connection between my statement and the trial at hand. He now tries to make his case with the questionnaire questions I had left blank.]
JUROR HARTWELL: I can't recall any question that appeared to refer to that.
THE COURT: Okay. Let me read two, and you may be right, but let me read two of them.
[At the risk of sounding cynical, did the judge mean to say that if he believed that I was right that he would admit that and let me go?]
On the questionnaire, the last two questions were:
"If you have any ethical, religious, political, or other beliefs that may prevent you from serving as a juror, explain."
And you left that blank?
[Earlier, the judge used the phrase “opinion” but now switches to the term “beliefs” on the questionnaire. The dictionary shows a wide difference in definition between the two terms. Beliefs are held much more strongly than mere opinions, and the judge has failed to demonstrate any belief of mine. This substitution of words, if intentional, was disingenuous.]
JUROR HARTWELL: That's correct.
THE COURT: And the next one was:
"Is there anything not covered by this questionnaire that would affect your ability to be a fair and impartial juror?"
[This appears to be a “cover all” question to make up for anything the prior questions missed. The problem with questions like these is that they are vague.]
And you said no?
JUROR HARTWELL: That's correct.
THE COURT: Okay. Then Judge Elias, in her courtroom, asked these three questions, and apparently she had given you all a description of what this case was about, correct?
JUROR HARTWELL: Yes.
THE COURT: And she told you who the parties were?
[The judge should have stated all of the parties at this point to avoid any confusion.]
JUROR HARTWELL: Yes.
THE COURT: Okay. And then she said:
"Having heard the description of the case, is there any member of the panel that feels that he or she cannot give either side of the parties a fair trial?"
And then she asked:
"Does anyone have any feelings about the nature or subject matter of the case that would make it difficult for you to be a fair and impartial juror?"
And then she said:
"Do any of you have any belief or feelings toward any of the parties, attorneys, or witnesses that might be regarded as prejudice or bias for or against any of them?"
[All questions refer to the feelings of the prospective jurors. The judge cannot say what my feelings were based on one paragraph of one essay out of more than 200 essays.]
JUROR HARTWELL: That's correct.
THE COURT: And you did not answer any of those questions?
JUROR HARTWELL: That's correct.
THE COURT: Why not?
[The question challenges me, which is fair. The problem is that the judge appears to say that he cannot think of any reasons or perhaps that I cannot give him a satisfactory answer at this point.]
JUROR HARTWELL: I believed then and I believe now that I could be a fair and impartial juror. I don't have ill feelings towards NBC nor towards the parties, and I understood the case to be about plaintiffs who had got involved in a contract dispute with NBC and NBC Studios.
THE COURT: Did they not mention – and again, I wasn't there, so you are going to have to help me out. Did no one mention the fact that there were allegations of fraud against NBC?
[This point is not relevant. The fraud alleged had nothing to do with news stories or pressure from the Bush Administration.]
JUROR HARTWELL: This was mentioned, yes.
THE COURT: Okay. That is something other than the contract.
JUROR HARTWELL: Right. I understood the actions to be in the context of deliberating or deciding upon a contract or about other matters between the plaintiffs and the defendants.
THE COURT: The plaintiffs being individuals and the defendant being a corporation?
[The judge here tries a different tack by introducing the issue of corporations. But I had merely said that he had “occasional” problems with media corporations, not corporations in general. This question only serves to portray the Court as a prosecutor looking for a false confession. Furthermore, the plaintiffs were not only individuals, but also two corporations that two individuals had created.]
JUROR HARTWELL: That's correct.
THE COURT: Okay. And at no time did you feel that it was appropriate for you to tell the lawyers on both sides any of your feelings about – that you wrote about in your website?
[In the language of objections, this question has been asked and answered. I already said I had no ill feelings toward any of the parties and felt that I was at all times a fair and impartial juror. This is badgering. And to what feelings about…that I wrote on my website did he refer? This question again is phrased in such a manner that I cannot reveal exculpatory information.]
JUROR HARTWELL: That's correct.
THE COURT: Okay. Now, how about the views, when you were leading the discussion or participating in the discussion, did you tell anything to the jurors about your view of corporations and how they are beholden to the government?
[The judge has now moved to another issue: what to do about the rest of the jurors and the rest of the trial. The judge has already decided to dismiss me by now but just hasn’t said so.]
JUROR HARTWELL: No.
THE COURT: Did you talk about anything concerning the corporations and how they favor the government, specifically the Bush administration?
[See above question. Also, it again puts words in my mouth – I said the media corporations favor incumbents.]
JUROR HARTWELL: No, I did not.
THE COURT: I'm sorry?
[The stenographer heard me though she was much further away than the judge. The repeat question may have been designed to trick a false confession out of me. That would be something to pacify what he knew would be an angry jury.]
JUROR HARTWELL: No, sir, I did not.
THE COURT: You did not.
So it is your belief that – or is it your belief that the views that you expressed on the website did not, in any way, impact on your vote?
[It would again be reasonable (for the judge’s sake) to ask to which views he referred.]
JUROR HARTWELL: That's correct.
THE COURT: And how about what you said to other jurors?
JUROR HARTWELL: It had no impact on what I said to other jurors.
THE COURT: Okay. Then go back to my question.
When Judge Elias read those final three questions, was there a reason why you didn't raise your hand and say, in substance, "You know, I don't think it's going to affect my vote, but the lawyers, in fairness, ought to know that I have written these articles and here is what they say"?
Any reason why you didn't tell them that?
[The question is again asked and answered. Also, the judge implies that jurors should bend over backwards to tell attorneys information that is gratuitous. The judge should consider that at least one juror now knows how to get out of jury duty.]
JUROR HARTWELL: The article in which I made reference to NBC and other big media corporations did not appear to be connected at all to the case that I was being told about.
THE COURT: Well, that is not my question, sir.
My question is: Didn't you feel that it would be appropriate to say to the lawyers, "You know, you ought to know this about me. I think I can be a fair juror, but I have written some articles that are very critical about big corporations, including NBC"?
Did you not think that might be helpful to the lawyers in deciding whether or not you should be kept as a juror?
[I answered the question. I said that I saw no connection between the article and the case. This is badgering again.]
JUROR HARTWELL: No, I did not consider that.
THE COURT: You didn't consider it. Okay.
Now, Judge Elias, at the time she was giving you the verbal questionnaire, if I may, said to the panel that what we are trying to do is to pick a fair and an impartial jury, didn't she?
[The judge has already decided to dismiss me (see above)].
The question here and those that follow have been asked and answered. This set of questions is pointless.]
JUROR HARTWELL: She did.
THE COURT: And she said that it is important that the lawyers on both sides get jurors that do not start out ahead or behind one another, correct?
JUROR HARTWELL: Correct.
THE COURT: I don't have any other questions. Anybody have any single question that you think is significant?
MR. SHIELDS: Just whether other jurors knew about the website.
[Now Mr. Shields, the NBC attorney, speaks. If he wanted to talk about the website, why not tell about all of the articles pertaining to NBC. He would have been surprised to know that some were positive! Of course, as the defense attorney, he had no obligation to disclose this information.]
THE COURT: Well, all right. Do you know if any of the other jurors knew about your website? We can ask them but it would be easier just to ask you.
JUROR HARTWELL: I don't believe they know about the website, no. I did not mention it.
THE COURT: So if they found out about it, they found out from somebody other than you?
JUROR HARTWELL: That would be correct.
THE COURT: Okay. Thank you so much. We appreciate your coming.
MR. NESSIM: Thank you.
My Thoughts about the Jury Experience (2014)
I have tried to understand the role of the judge and the defense attorneys. My law degree and my time in law school give me the background to know that the defense had the right to pick my statements selectively so as to give their client the strongest defense possible without lying.
My anger toward the defense ceased first. It took a bit longer for my feelings toward the judge to blow over because the judge had the obligation to be objective.
I believe that NBC never wanted the trial to take place and did whatever they could (legally) to stall it first. Failing that, they looked for an opportunity to get a mistrial.
I do not know when they “Googled” me. They say they did so after learning that I was the foreperson. I have no evidence otherwise even though it seems a bit hard to believe they did not screen potential jurors ahead of time.
In any case, as soon as they filed their motion for my dismissal, the case was over. The judge was put in the unfortunate position of having to hear NBC complain in open court about juror bias.
The very allegation tainted whatever verdict may have come forth. Had we, the jurors, been allowed to present the verdict of approximately $49 million dollars PLUS punitive damages, NBC would have filed every motion possible to stall the enforcement of the verdict.
And their stocks would have taken a plunge.
So the judge, in my opinion, made up his mind before our conversation in chambers to let me go. He simply listened for a “hook” on which to hang his argument for my excusal and found something he thought would appease the defense. That was why he never asked any exculpatory questions of me or allowed me to speak freely.
He sent me home, told the jurors a simple story that I had failed to answer questions at voir dire and then waited for the inevitable conclusion.
The plaintiffs had surmised they had won (why else the fuss over a supposed anti-defense juror?) and thus held leverage against the defense, who could only buy time. A total mistrial was asking a bit too much, and they probably knew it.
So they settled. Big money to plaintiffs, no punitive damages and the stocks don’t take a big fall.
Funny thing about stocks: the original judge, Judge Elias, had to recuse herself when she learned that her husband had stock in General Electric, which then owned the National Broadcasting Corporation.
Did the judge honestly expect a jury full of people who had never held an opinion of one of the most powerful voices in the whole world? His proper role was to dismiss any juror who held a bias for or against any party AT THE TIME OF VOIR DIRE.
When he failed to identify any such bias in me, he should have sent me back to the other jurors so that we could present the verdict. By showing deference to NBC, for whatever reason, he slammed the gate or truth about NBC misconduct and minimized its consequences.
Postscript: Henry Shields, Jr., the lead defense attorney, passed away in 2014. I attempted to reach Judge Ettinger in 2014 for his response to my allegations but I had no success. Judge Ettinger passed away in 2015.
Below I have reprinted an article I wrote days after my dismissal.
None Dare Call It Reason (4/29/07)
Recently, I served on a jury for three-and-a-half months in the “Will and Grace” case, just settled between plaintiffs David Kohan and Max Mutchnick (who co-created the show) and their talent agent, Scott Schwartz and defendants NBC and NBC Studios. Before the settlement, the jury, of which I was the foreperson, reached a verdict and was prepared to deliver it after deliberating for eight days.
The judgment went for the plaintiffs on twelve of the fourteen verdict questions, awarding them approximately $49 million and a chance for punitive damages. The plaintiffs had presented a strong factual case and we mostly voted for them unanimously, even though only nine votes were needed per question except for the punitive damage question, which required all twelve votes.
While we were waiting in the jury room, the courtroom assistant asked me to step outside to the hallway. She led me to the judge’s chambers, where several people, including the attorneys of the parties, the courtroom reporter and the judge waited.
I didn’t know what they wanted to talk about. I took a seat facing the judge, Warren Ettinger. He began by saying, “Mr. Hartwell…” which I took as a bad sign.
It became clear to me that in-chamber conversations with a judge are meant to be one-sided. For the next forty minutes, he read excerpts of an essay I had written two years ago (May 2005) and asked me questions about it.
The essay, Corporate Media Favors Incumbents (5/19/05), makes mention of NBC as one of many sources of the corporate media that miss certain stories of importance. I listed stories that I thought the corporate media should have covered then and called other stories, like the story of a runaway bride, “phony.” I also named ABC, CBS and FOX and their respective parent companies.
As for the article, I said the news media sometimes does not run certain stories at the behest of certain people in government. I could not understand what the news media had to do with the case.
The judge asked why I didn’t bring it up in a jury questionnaire or in response to then-Judge Elias’ questions, which asked:
whether the juror had “any ethical, religious, political, or other beliefs that may prevent you from serving as a juror”
whether there is “anything not covered by this questionnaire that could affect your ability to be a fair and impartial juror”
“having heard the description of the case, is there any member of the panel that feels that he or she cannot give either side or any of the parties a fair trial?”
“Does anyone have any feelings about the nature or subject matter of the case that would make it difficult for you to be a fair and impartial juror?”
“Do any of you have any belief or feelings towards any of the parties, attorneys or witnesses that might be regarded as bias or prejudice for or against any of them?”
I don’t recall precisely which questions he asked, but I told him that when I read the form in January, I held no bias toward any of the parties and held none at the present time. I was always a fair and impartial juror without any beliefs that any of the parties could regard as bias and thus had no reason to answer these questions. Since I was not given much time to reply in the chambers, I thought of other reasons later as well.
First, I have written over two hundred columns for my site. I simply could not recall all of them when I read the questionnaire and listened to Judge Elias and never believed the site to be "critical of corporations in general – and NBC in particular," as Judge Ettinger said to the media later.
Second, to come to Ettinger’s conclusion about my site in a fair and unbiased manner, he would need to read further into my articles. I have created an archive, which allows one to go through articles by topic. Had he looked, he may well have found See You at Gitmo (10/25/06). This column cites MSNBC (a part of NBC) favorably and praises Keith Olbermann, one of its employees, for his on-air work.
To put the idea of whether my bias exists into context, the judge could have considered my column Free Riad (5/13/02) about a friend of mine, a man of Palestinian ancestry, who was illegally detained in Israel back in 2002. I harshly criticize Israel for its actions in this column. That does not make me biased against Israel.
In fact, I wrote even-handed columns about the Palestinian-Israeli conflict in Solution for Peace in the Middle East (3/7/02) and Using PR for Peace (4/3/02). I express sympathy for Israel for being around hostile nations for so long, and I actually compliment President Bush for one of his actions.
I acknowledge my bias against the Bush Administration since I have written several columns opposing its policies. However, the defense’s attempts to translate this bias into bias against NBC fall flat. The very article they gave to the judge to show to me is titled Corporate Media Favors Incumbents.
They selected some of my columns suggesting government agent complicity in 9/11 (failing to acknowledge I cited NBC’s “Meet the Press” as a source. Why would I cite sources I have a bias against? Think about it.).
I never hold NBC responsible for the events of 9/11. They also overlooked an article about the JFK assassination where I question members of the Democratic Lyndon Johnson Administration. I don’t just criticize Bush. It only seems that way because he became the president one month after I started the site.
There was bias at the trial. From my point of view as a juror, the bias belonged to Judge Ettinger. He repeatedly belittled the lead plaintiff attorney, Ronald Nessim (a tough and tenacious lawyer who presented a great case) in front of the jury, at one point sarcastically asking him what law school he went to and threatening him with sanctions unnecessarily. He never scolded the defense for its ubiquitous objections. Instead, he sustained them.
Ettinger was called out of retirement to replace the first judge, Elias, who recused herself. He had nothing to lose by going along with the defense plan to remove me unfairly. How can any action be taken against him if he is going back to retirement, anyway?
If it wasn’t going to be me targeted, it would have been another juror. As the foreperson, I was probably their first choice. So they found something about me on Google to send to the judge. The lead defense attorney, Henry Shields, called it “serendipity.”
Whatever you call it, they amazingly put together a 52-page motion for a mistrial to the judge overnight. They use big phrases like “Mr. Hartwell has a deep seated [sic] distrust of and bias against large media corporations.” They never bother to demonstrate this bias. They acknowledge on the one hand that I have written “dozens” of articles, but they cherry-pick a tiny percentage of them and blow them out of proportion. They smear me with discussion of articles about the attacks of 9/11, and I can’t help but think the term “conspiracy nut” crossed their minds.
Shields even insinuated in the judge’s chambers that I tried to bias the other jurors against NBC but failed to show proof. At least two of my fellow jurors have spoken on this subject since the end of the trial, and they have both insisted that I was not biased. Supposedly, the judge polled all jurors about my alleged bias, but the poll results, which would definitely answer Shields’ concerns, have not been made public to my knowledge.
Last, but not least, when they get around to making a legal argument, the defense compares my attitude to a juror in another case who said of a black plaintiff that “where he came from, they don’t even let a black woman into the courtroom.” I bet they guessed no one would actually read this trash. None dare call it reason.
---
Judge Ettinger never gave me the opportunity to present evidence of my objectivity in discussing NBC in his chambers. He dismissed me and has never responded to anything I have written to him on this matter, including this letter, sent in March 2009:
Two Years of Reflection on Kohan v NBC Summarized in One Short Letter
Dear Judge Ettinger,
The second anniversary of the conclusion of Kohan v NBC is approaching. It took two years of studying our meeting in the chambers, but I have finally summarized the key issue succinctly, and I leave this for you as my last message on Kohan:
- You brought to my attention in chambers an article I had written two years before (May 2005).
- NBC had claimed in its Motion to Dismiss that it showed bias on my part against them and the corporate media despite the fact that the comments addressed only three specific news stories.
- You then asked me what my beliefs were about NBC at the time of voir dire (January 2007) ASIDE FROM MY WRITINGS.
- I replied that I believed that on occasion, NBC and the corporate media took direction from the government about decisions on stories to publish, a statement that did not reflect bias against the media. If you needed clarification about that, you had the authority to ask follow up questions.
- If you did not believe my answer, you had other articles within the Motion to Dismiss in which I displayed an even-handed attitude about NBC and the corporate media, such as "Try Cheney in the Media." These articles came out AFTER May 2005 and none reflect a negative bias toward NBC or the corporate media.
If I am ever again asked to answer questions for voir dire, I now know one thing from our experience: the court can and will use anything against me and ignore exculpatory evidence. Your actions showed it and your silence confirms it.
Dean Hartwell
CC: Ronald Nessim (Lead Attorney for Plaintiffs), Henry Shields, Jr. (Lead Attorney for Defendants) and Rosalie Luna, Courtroom Assistant of case
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The Transcript of the Conversation between the Court and I with My Comments in Bold
THE COURT: Good morning, Mr. Hartwell. Have a seat over here. We need to ask you some questions. It has come to my attention that for some time you have had a website?
[Background question. Looking back on it, I should never have taken a seat. By doing so, I implied consent with the rules – namely, no due process rights – without a word]
JUROR HARTWELL: That's correct.
THE COURT: And you have written some articles?
[Background question. But, as will soon be clear, this is the first of a series of questions that will make it impossible for me to declare my best defense: that I had not remembered any bias or any particular article at the time of voir dire]
JUROR HARTWELL: I have.
THE COURT: And I would like to ask you some questions about the articles.
[States the Purpose of the Discussion. Here the judge implies that it will discuss more than one article]
JUROR HARTWELL: Okay.
THE COURT: First of all, did you have any opinions of NBC Studios or GE before you came in here for this trial?
[The question leaves out one of the defendants, NBC. Also, the reference to GE (General Electric) was not clear because GE was not a defendant in the case.]
JUROR HARTWELL: No.
[As will be shown in a moment, I had written about GE but did not recall the writing. My lack of recollection makes it hard to believe that I held any opinion of them because I stated my opinions on my website.]
THE COURT: Okay.
[This statement appears to allow the judge to re-state the question]
JUROR HARTWELL: I referred to the mass media on occasions.
[My answer did not respond to a question. I was probably gathering my thoughts, and I decided to clarify my answer. This answer should have tipped the judge to multiple articles on the topic]
THE COURT: Yes. And mentioned ABC and NBC by name?
[The question appears to lead me, which is indicative of intent to draw a specific answer. After failing to ask about NBC when he asked me of my opinions, the judge now specifies NBC in asking what appears to be the same question. The switching of names indicates confusion on his part, or intent to confuse me.]
JUROR HARTWELL: ABC and NBC by name.
THE COURT: Yes. Let me give you a quote, if I may. And I hope this is an accurate quote.
[If the judge “hopes” the quote is accurate, it would make sense to allow me to correct it by saying “Correct me if I am wrong” or, better yet, “Let me read you the quote and you let me know if this is accurate and in proper context.”]
This is in an article that you wrote in May of [2005]:
"How can the corporate media (such as ABC, NBC, CBS, and Fox) miss all these stories and annoy us with phony ones. The Walt Disney Company owns ABC, Viacom owns CBS, General
Electric owns NBC. The executives who make decisions on what to air receive huge tax cuts thanks to the Bush administration policies as do the corporations themselves."
That is – it is to that that I referred.
[Bear in mind I arrived at the Chambers with no indication of the nature of the controversy. Furthermore, there are several problems with this question: First, the article was written two years previously. The judge could have asked whether it reflected my opinion at the time of voir dire. Second, the judge failed to acknowledge what the words “these stories” referred to.
Had he read the whole essay, he would have seen that I specified three stories that the corporate media missed and three stories that the corporate media ran instead. Third, how can one paragraph accurately portray the whole opinion of one essay, let alone the juror’s entire set of opinions? Fourth, it now seems obvious that the word “phony” caught his (and the defense team’s) attention. The “phony” news stories included the “Runaway Bride” and Michael Jackson’s criminal trial for child molestation. The judge should have read the whole article or at least asked me what I meant by phony.]
JUROR HARTWELL: Okay.
THE COURT: And I guess my question is: Other than the writings that appear on your website, have you written any other articles?
[A fair question, but not nearly as good as asking if I stated any differing opinions anywhere else on the website. That would have been a chance for me to offer exculpatory evidence.]
JUROR HARTWELL: None that I can recall.
THE COURT: Okay. Before the trial, did you have a feeling about the relationship between the government and the media other than what you have said in your articles?
[Which articles? The court has only named one. He appears to assume that all opinions on the site are the same. Again, he denied me the chance to give exculpatory evidence!]
JUROR HARTWELL: A relationship. A relationship
Where, on occasions, I believe that parts of the mass media do take direction from members of the government, yes.
[I did not state which parts of the mass media. Nor is this statement an indication of bias against those parts of the mass media.]
THE COURT: Okay. Did you have any reason why you didn't reveal that on your questionnaire?
[The judge shows no connection between my statement and the trial at hand. He now tries to make his case with the questionnaire questions I had left blank.]
JUROR HARTWELL: I can't recall any question that appeared to refer to that.
THE COURT: Okay. Let me read two, and you may be right, but let me read two of them.
[At the risk of sounding cynical, did the judge mean to say that if he believed that I was right that he would admit that and let me go?]
On the questionnaire, the last two questions were:
"If you have any ethical, religious, political, or other beliefs that may prevent you from serving as a juror, explain."
And you left that blank?
[Earlier, the judge used the phrase “opinion” but now switches to the term “beliefs” on the questionnaire. The dictionary shows a wide difference in definition between the two terms. Beliefs are held much more strongly than mere opinions, and the judge has failed to demonstrate any belief of mine. This substitution of words, if intentional, was disingenuous.]
JUROR HARTWELL: That's correct.
THE COURT: And the next one was:
"Is there anything not covered by this questionnaire that would affect your ability to be a fair and impartial juror?"
[This appears to be a “cover all” question to make up for anything the prior questions missed. The problem with questions like these is that they are vague.]
And you said no?
JUROR HARTWELL: That's correct.
THE COURT: Okay. Then Judge Elias, in her courtroom, asked these three questions, and apparently she had given you all a description of what this case was about, correct?
JUROR HARTWELL: Yes.
THE COURT: And she told you who the parties were?
[The judge should have stated all of the parties at this point to avoid any confusion.]
JUROR HARTWELL: Yes.
THE COURT: Okay. And then she said:
"Having heard the description of the case, is there any member of the panel that feels that he or she cannot give either side of the parties a fair trial?"
And then she asked:
"Does anyone have any feelings about the nature or subject matter of the case that would make it difficult for you to be a fair and impartial juror?"
And then she said:
"Do any of you have any belief or feelings toward any of the parties, attorneys, or witnesses that might be regarded as prejudice or bias for or against any of them?"
[All questions refer to the feelings of the prospective jurors. The judge cannot say what my feelings were based on one paragraph of one essay out of more than 200 essays.]
JUROR HARTWELL: That's correct.
THE COURT: And you did not answer any of those questions?
JUROR HARTWELL: That's correct.
THE COURT: Why not?
[The question challenges me, which is fair. The problem is that the judge appears to say that he cannot think of any reasons or perhaps that I cannot give him a satisfactory answer at this point.]
JUROR HARTWELL: I believed then and I believe now that I could be a fair and impartial juror. I don't have ill feelings towards NBC nor towards the parties, and I understood the case to be about plaintiffs who had got involved in a contract dispute with NBC and NBC Studios.
THE COURT: Did they not mention – and again, I wasn't there, so you are going to have to help me out. Did no one mention the fact that there were allegations of fraud against NBC?
[This point is not relevant. The fraud alleged had nothing to do with news stories or pressure from the Bush Administration.]
JUROR HARTWELL: This was mentioned, yes.
THE COURT: Okay. That is something other than the contract.
JUROR HARTWELL: Right. I understood the actions to be in the context of deliberating or deciding upon a contract or about other matters between the plaintiffs and the defendants.
THE COURT: The plaintiffs being individuals and the defendant being a corporation?
[The judge here tries a different tack by introducing the issue of corporations. But I had merely said that he had “occasional” problems with media corporations, not corporations in general. This question only serves to portray the Court as a prosecutor looking for a false confession. Furthermore, the plaintiffs were not only individuals, but also two corporations that two individuals had created.]
JUROR HARTWELL: That's correct.
THE COURT: Okay. And at no time did you feel that it was appropriate for you to tell the lawyers on both sides any of your feelings about – that you wrote about in your website?
[In the language of objections, this question has been asked and answered. I already said I had no ill feelings toward any of the parties and felt that I was at all times a fair and impartial juror. This is badgering. And to what feelings about…that I wrote on my website did he refer? This question again is phrased in such a manner that I cannot reveal exculpatory information.]
JUROR HARTWELL: That's correct.
THE COURT: Okay. Now, how about the views, when you were leading the discussion or participating in the discussion, did you tell anything to the jurors about your view of corporations and how they are beholden to the government?
[The judge has now moved to another issue: what to do about the rest of the jurors and the rest of the trial. The judge has already decided to dismiss me by now but just hasn’t said so.]
JUROR HARTWELL: No.
THE COURT: Did you talk about anything concerning the corporations and how they favor the government, specifically the Bush administration?
[See above question. Also, it again puts words in my mouth – I said the media corporations favor incumbents.]
JUROR HARTWELL: No, I did not.
THE COURT: I'm sorry?
[The stenographer heard me though she was much further away than the judge. The repeat question may have been designed to trick a false confession out of me. That would be something to pacify what he knew would be an angry jury.]
JUROR HARTWELL: No, sir, I did not.
THE COURT: You did not.
So it is your belief that – or is it your belief that the views that you expressed on the website did not, in any way, impact on your vote?
[It would again be reasonable (for the judge’s sake) to ask to which views he referred.]
JUROR HARTWELL: That's correct.
THE COURT: And how about what you said to other jurors?
JUROR HARTWELL: It had no impact on what I said to other jurors.
THE COURT: Okay. Then go back to my question.
When Judge Elias read those final three questions, was there a reason why you didn't raise your hand and say, in substance, "You know, I don't think it's going to affect my vote, but the lawyers, in fairness, ought to know that I have written these articles and here is what they say"?
Any reason why you didn't tell them that?
[The question is again asked and answered. Also, the judge implies that jurors should bend over backwards to tell attorneys information that is gratuitous. The judge should consider that at least one juror now knows how to get out of jury duty.]
JUROR HARTWELL: The article in which I made reference to NBC and other big media corporations did not appear to be connected at all to the case that I was being told about.
THE COURT: Well, that is not my question, sir.
My question is: Didn't you feel that it would be appropriate to say to the lawyers, "You know, you ought to know this about me. I think I can be a fair juror, but I have written some articles that are very critical about big corporations, including NBC"?
Did you not think that might be helpful to the lawyers in deciding whether or not you should be kept as a juror?
[I answered the question. I said that I saw no connection between the article and the case. This is badgering again.]
JUROR HARTWELL: No, I did not consider that.
THE COURT: You didn't consider it. Okay.
Now, Judge Elias, at the time she was giving you the verbal questionnaire, if I may, said to the panel that what we are trying to do is to pick a fair and an impartial jury, didn't she?
[The judge has already decided to dismiss me (see above)].
The question here and those that follow have been asked and answered. This set of questions is pointless.]
JUROR HARTWELL: She did.
THE COURT: And she said that it is important that the lawyers on both sides get jurors that do not start out ahead or behind one another, correct?
JUROR HARTWELL: Correct.
THE COURT: I don't have any other questions. Anybody have any single question that you think is significant?
MR. SHIELDS: Just whether other jurors knew about the website.
[Now Mr. Shields, the NBC attorney, speaks. If he wanted to talk about the website, why not tell about all of the articles pertaining to NBC. He would have been surprised to know that some were positive! Of course, as the defense attorney, he had no obligation to disclose this information.]
THE COURT: Well, all right. Do you know if any of the other jurors knew about your website? We can ask them but it would be easier just to ask you.
JUROR HARTWELL: I don't believe they know about the website, no. I did not mention it.
THE COURT: So if they found out about it, they found out from somebody other than you?
JUROR HARTWELL: That would be correct.
THE COURT: Okay. Thank you so much. We appreciate your coming.
MR. NESSIM: Thank you.
My Thoughts about the Jury Experience (2014)
I have tried to understand the role of the judge and the defense attorneys. My law degree and my time in law school give me the background to know that the defense had the right to pick my statements selectively so as to give their client the strongest defense possible without lying.
My anger toward the defense ceased first. It took a bit longer for my feelings toward the judge to blow over because the judge had the obligation to be objective.
I believe that NBC never wanted the trial to take place and did whatever they could (legally) to stall it first. Failing that, they looked for an opportunity to get a mistrial.
I do not know when they “Googled” me. They say they did so after learning that I was the foreperson. I have no evidence otherwise even though it seems a bit hard to believe they did not screen potential jurors ahead of time.
In any case, as soon as they filed their motion for my dismissal, the case was over. The judge was put in the unfortunate position of having to hear NBC complain in open court about juror bias.
The very allegation tainted whatever verdict may have come forth. Had we, the jurors, been allowed to present the verdict of approximately $49 million dollars PLUS punitive damages, NBC would have filed every motion possible to stall the enforcement of the verdict.
And their stocks would have taken a plunge.
So the judge, in my opinion, made up his mind before our conversation in chambers to let me go. He simply listened for a “hook” on which to hang his argument for my excusal and found something he thought would appease the defense. That was why he never asked any exculpatory questions of me or allowed me to speak freely.
He sent me home, told the jurors a simple story that I had failed to answer questions at voir dire and then waited for the inevitable conclusion.
The plaintiffs had surmised they had won (why else the fuss over a supposed anti-defense juror?) and thus held leverage against the defense, who could only buy time. A total mistrial was asking a bit too much, and they probably knew it.
So they settled. Big money to plaintiffs, no punitive damages and the stocks don’t take a big fall.
Funny thing about stocks: the original judge, Judge Elias, had to recuse herself when she learned that her husband had stock in General Electric, which then owned the National Broadcasting Corporation.
Did the judge honestly expect a jury full of people who had never held an opinion of one of the most powerful voices in the whole world? His proper role was to dismiss any juror who held a bias for or against any party AT THE TIME OF VOIR DIRE.
When he failed to identify any such bias in me, he should have sent me back to the other jurors so that we could present the verdict. By showing deference to NBC, for whatever reason, he slammed the gate or truth about NBC misconduct and minimized its consequences.
Postscript: Henry Shields, Jr., the lead defense attorney, passed away in 2014. I attempted to reach Judge Ettinger in 2014 for his response to my allegations but I had no success. Judge Ettinger passed away in 2015.
