THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, October 14, 1996 TAG: 9610140030
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: 132 lines
K. Scott Strickland is one jaded juror.
Strickland recently served eight days in a medical malpractice trial. He was reluctant - it cost him eight days of work - but he figured it was his civic duty.
Then, on the last day of trial, Strickland was sent home. He never got to deliberate with the other jurors. Worse, the jury's verdict - awarding $235,715 to a cancer patient's family - was the opposite of how Strickland would have voted.
Turns out Strickland wasn't any old juror: He was the alternate. And in the world of Virginia courts, alternates are chosen to be seen, not heard. They are there for emergencies. Otherwise, see you later.
Nothing personal; that's just how the system works.
``I was basically devastated. Totally disappointed,'' said Strickland, a 43-year-old builder. ``Not angry. I was basically upset that I couldn't give my verdict.''
The presiding judge says he knows how Strickland feels.
``I told him I was sorry,'' said Norfolk Circuit Judge John E. Clarkson, ``but by law I can only send the jury back (to deliberate) and not the alternates.''
In the entire criminal justice system, there may be no lonelier figure than the alternate juror.
Everyone else in the courtroom has something to cling to. The judge has ultimate power. Lawyers and witnesses sway trials. Jurors render verdicts. Even court stenographers have their transcripts.
Alternate jurors have nothing. Their job, like the vice president's, is simply to be there. They sit in the same jury box, hear the same testimony, but they don't get to say anything when the trial is over.
In fact, alternate jurors don't even know they are alternates until the trial ends. Judges and jurors fear that if alternates knew their status, they might not pay much attention to testimony. Worse, they might not show up for a trial's second day.
But many trials couldn't end without them.
``You don't want one juror to call in sick after a week of trial and have a mistrial and have to start all over again,'' Clarkson said.
Alternates are chosen in long trials in which judges and lawyers fear that one or two regular jurors might drop out, for illness or other reasons. There can be any number of alternates, depending on how many the judge and lawyers want.
``The risk you run,'' said Thomas B. Shuttleworth, the plaintiff's attorney in the medical malpractice trial, ``is if you don't have an alternate, Virginia law doesn't provide for a verdict of less than seven jurors (in a civil case). That happens more often than you might think.''
It happened in Norfolk a few years ago, in the federal trial of a large drug gang. The trial began with a full jury plus several alternates. Two or three weeks later, the jury had dwindled to 11.
Problem is, federal law requires 12 jurors for a criminal verdict.
The court panicked. Judges and law clerks scrambled to save the trial. They did, eventually, by finding an obscure rule that allows fewer than 12 jurors in some emergencies.
Another quirky federal rule lets alternate jurors deliberate with other jurors in civil cases.
That happened in January in the trial of Glenn Davis, a Baltimore Orioles baseball star whose jaw was broken by a Virginia Beach bar bouncer.
The jury awarded Davis $1.6 million in damages. That panel included two alternate jurors who had sat through the same six days of testimony as the regular jurors. Judge Henry C. Morgan let them sit through deliberations, too.
``That's the difference between a criminal and a civil jury under federal rules,'' Morgan said.
In Virginia state courts, however, alternate jurors never could have made the cut.
Scott Strickland's experience is typical.
Strickland got the jury notice this summer from Norfolk Circuit Court. It was not welcome. `My first reaction was, `I don't have time to serve on a jury now,' '' he recalled.
Strickland is president and co-owner of Commonwealth Custom Home Builders. He was building six new houses in Virginia Beach, Norfolk and Chesapeake. ``Probably the busiest year I've ever had,'' Strickland said.
So Strickland begged off. Call me later, Strickland told the court; I'm too busy now.
Think again, the court replied.
The summons told Strickland to report for duty every Monday in September. Sure enough, on his first day, Strickland landed in the jury box.
It was a medical malpractice case, Rizzi vs. Speckhart, involving a cancer patient who died after homeopathic therapy. Strickland figured he was out of the case. During jury selection, he told the judge that half his family had died of cancer. ``I thought I'd get disqualified,'' Strickland said.
Wrong again. When the trial began, Strickland was on the jury, though he did not know he was one of two alternates. In every trial, the judge and lawyers decide which jurors are alternates before the case begins. The jurors are not told until the end.
The Speckhart malpractice trial was scheduled for three or four days. That proved optimistic. By the time the last witness was called, eight days had passed. Even the judge was surprised.
At the end, Strickland knew how he would vote: The doctor was not at fault, he concluded. The patient chose his own therapy, and his family did not deserve damages.
But then, just before closing arguments, Judge Clarkson dismissed the two alternates. To his surprise, Strickland heard his own name being called.
``I was devastated,'' Strickland wrote in a letter to The Virginian-Pilot after the verdict. ``My heart sank to my stomach. I had sacrificed 7 1/2 days of my time and couldn't even voice my verdict.''
Clarkson said he was sorry the alternates could not take part in deliberations. ``It really was a very good jury,'' he said later. ``They were very interested. It was an interesting case.''
Since then, Strickland has gone through a curious change of opinion.
At first, he was bitter. ``I will never, ever have anything to do with the justice system again,'' he resolved.
Three days later, his view softened. It had been an interesting experience, after all. And maybe it wasn't so terribly bad. ``If alternates are necessary,'' he wrote, ``at least let them be a part of the deliberations for trials lasting more than five days.''
And maybe, Strickland conceded, reluctantly, he would do it again.
``If I did get called again, in a few years,'' Strickland said, ``I might find the time to do it.'' ILLUSTRATION: [Color Photo]
MORT FRYMAN
The Virginian-Pilot
K. Scott Strickland, a builder, lost eight days of work last month
when he served on a Norfolk jury. Before deliberations began, he
learned he was an alternate - and was sent home.
About alternate jurors
Alternates are chosen in long trials in which judges and lawyers
fear that one or two regular jurors might drop out, for illness or
other reasons. They sit in the same jury box, hear the same
testimony, but they don't get to say anything when the trial is
over. In fact, alternate jurors don't even know they are alternates
until the trial ends.
KEYWORDS: JUROR ALTERNATIVE JUROR by CNB