Juror gets fresh look at system

      When I was summoned into the courtroom of District Judge Stephen Huffaker the morning of March 31, it was my belief and my hope there was no way these people would ever put me on a jury.
      As a reporter who has covered hundreds of state and federal trials for the Review-Journal, I've learned a few things about the field of law and had an intimate look at how the system works. I also personally knew the judge as well as the attorneys for both sides in Canterino vs. Mirage Resorts Inc. I was hoping somebody would invent a reason to throw me off the panel.
      I was called up for my voir dire -- in my opinion the most important part of any trial -- when the attorneys question the jurors about their potential biases.
      The questioning was brief and general, and I had to be honest. I had no preconceived judgments and could be fair. It appeared I was sailing into a job of enormous responsibility that was going to pay me $15 a day.
      But then Mirage attorney Carolyn Ellsworth gave me my opening.
      "If you were in The Mirage's position," she asked, "Would you want someone like yourself to serve on the jury?"
      Most jurors, when faced with this common question, simply say, "Yes." But I picked it apart. I knew that in most any case, one side is going to have fewer legal legs than the other. Therefore, I thought, one side likely does not want a juror who is necessarily too analytical. I decided to be overly analytical in my response.
      I told Ellsworth I couldn't get into The Mirage's head, that I had no idea what it was looking for, and that I consequently could not know if I was the type of juror it sought. It was a comment made for both sides.
      It failed. Both attorneys wanted me. For the next nine days, I would be helping to decide a multimillion-dollar case that pitted Joseph Canterino, a New York City longshoreman who had been severely beaten on Mirage property in 1992, against a powerful and presumably soulless corporation.
      The first difference I found between juror and reporter is that I had none of the luxuries of being an outside observer with nothing at stake. I couldn't speak to anyone; I couldn't play Geraldo Rivera with people at the courthouse and analyze the attorneys, the parties, the case and the strategies. I had to work harder and pay closer attention to the small details.
      I remember a trial years ago when I found court proceedings so uproariously funny that a TV reporter and I, fearful we would cause a scene, had to bolt from the room.
      But as a juror, I was humorless. I felt my facial expressions were being watched. I tended to notice that I stared slightly upward and into space when unbelievable testimony was offered. Whenever Ellsworth or Canterino attorney Marty Keach tried to appeal to me or my fellow jurors in a folksy manner, I sat stonefaced, defying what I perceived as an attempt to elicit a "read."
      Both attorneys were very capable, but sometimes I was irked.
      At one point Ellsworth was questioning Canterino's expert witness on security, Larry Talley, who told her that she should know about certain legal issues because she was a former deputy district attorney.
      "Yes, Mr. Talley," she responded, "And do you know what my specialty was? Do you know it was fraud?"
      Because the cornerstone of The Mirage's case was an allegation that Canterino's version of events was a fraud, I felt she was vouching for her expertise. I lowered my head and let out a small growl.
      Keach elicited a similar response when, following an otherwise excellent closing argument, he came very close to telling the jury he was going to hold us to finding in his client's favor. Most attorneys in closings tell jurors they appreciate their effort and will respect whatever decision they make. I felt somewhat manipulated.
      The following is an excruciatingly simple version of what this 5-year-old litigation was about.
      Canterino, a former checker on the docks of New York, came to The Mirage on April 5, 1992, for a five-day visit. He was given a room on the 16th floor. During the first few days, he played roulette and blackjack, sometimes winning, sometimes losing.
      About 4:30 p.m. on April 7, Mirage security responded to a call of a man down in an elevator lobby on the 16th floor, about 50 yards from Canterino's room. He claimed he had been beaten and robbed of $72,000 by two men, one of whom had a big belly and another who had a hairy chest. His key witness (other than himself) was a maid who claimed she saw two men fitting the same description talking with a Mirage security officer for more than an hour in the 16th floor hallway before the attack. Canterino's other main point was that only three security officers patroled the hotel's 3,000 guest rooms, which he argued was inadequate protection.
      The Mirage's defense was that Canterino's story was a fabrication. The maid, The Mirage contended, was either lying or confabulating. I believed she was doing both, and so did several other jurors.
      She was torn apart on cross-examination and appeared to be unreasonably angry at the hotel and unbelievably paranoid. She said she wasn't particularly helpful early on in the investigation in part because she didn't want The Mirage to buy her silence and that the hotel "could have sent some hit man or kooks" after her.
      Furthermore, the rooms she was cleaning at the time of the attack were 75 yards from the events she described. The jury was taken to the 16th floor. I could barely discern a person's shape from where she was.
      It was a powerful field trip for many of us.
      With her version in grave doubt, we had to deal with Canterino's story. He said he came to The Mirage alone to gamble and knew nobody in Las Vegas. He said that in the hours just before the attack, he was playing table games but fell ill, likely from the fried chicken, two soft drinks, steak and cheesecake he had earlier ordered from room service.
      His story had many inconsistencies and convenient "I don't remembers." Most important to me was the fact that telephone calls were made from Canterino's room to his girlfriend in New York at the same time surveillance on the casino floor depicted him playing roulette.
      Who was this mystery person making calls to someone he knew? In my mind, it was hard physical evidence contradicting a key element of Canterino's version and raised the question: Why not call that person to the stand? The only reason I found plausible was that the unknown guest knew the real story.
      I had always wondered whether, if I found myself in a minority position on a jury, I would have the persuasive power to change minds. In the first day of our deliberations, it didn't take me long to realize I was going to be put to that test.
      "Now we stop being friends," one juror said Wednesday afternoon as the case was put into our hands.
      We elected a foreman and went around the room, each stating our opinion on the case. The initial breakdown was four jurors firmly for Canterino, one juror leaning toward the plaintiff, and one on the fence. Backing The Mirage was a woman who was a former hospital instrument technician and myself.
      Initial discussions were unfocused. We got into picking apart whether the post-attack investigation was perfect. All sorts of "what ifs" were raised, things like: "What if I slip on a banana peel in The Mirage, are they not liable?" At the end of the first day, little progress had been made.
      I had a sleepless Wednesday night, thinking about what I would say the next day and worrying about how to say it. I began to wish my notes were more perfect.
      Thursday morning, I started with a 15-minute speech in the jury room, saying we were spending way too much time on post-attack events and that we needed to focus on four key witnesses -- Canterino, the maid and the security experts both sides had hired. They would in essence determine what the pre-attack scenario was and whether The Mirage could have foreseen or prevented the beating.
      So we did that for the next seven hours. Some jurors stuck to a basic theme: "We know he got the crap beat out of him; we know it happened at The Mirage; we know he is permanently injured; and he deserves to be compensated."
      Many jurors were angry that The Mirage had more security personnel devoted to the Siegfried & Roy show and their white tigers than it did to the room guests. I couldn't fault that response.
      I wasn't thrilled with some aspects of the guest tower security either, but in my mind there was one key instruction from the court: Canterino had to prove negligence -- and not something else -- was the direct cause of his injuries.
      I thought if we couldn't trust Canterino's story, supported only by a discredited maid, we could never know the proximate cause. About half the jury appeared to totally accept Canterino's version of how the beating occurred. Others outright rejected it and a couple of jurors had reservations. Various theories of what might have happened were thrown around, two or three of which I found plausible.
      It was elusive trying to prove a negative, but the instructions didn't require we do so. So I tried to convince jurors to believe an alternate scenario -- whatever it was -- was the most likely explanation.
      Our final vote was an unshakable 6-2, the legal requirement in a civil trial. It was time for me and my ally in the minority to give in. Our argument had been stated and restated 10 different ways. I was exhausted. I was disappointed. One of the jurors for Canterino was near tears. I knew the feeling.
      When I walked back into the courtroom with my fellow jurors, I looked out and saw rows of attorneys and investigators, and two reporters doing what I had done for eight years. My palms were sweating. The verdict was given. The jury was polled.
      "Warren Bates, is this your verdict as read?" Huffaker's court clerk asked. Though I felt sorry that Canterino had serious physical injuries, I had no regrets about saying, "No."
      Canterino was awarded nearly $5.8 million.
      History tells me an appeal will be made, so if you were to ask me if the system worked, I wouldn't be able to say.
      But looking back, I am grateful nobody on March 31 invented a reason to kick me off a Clark County jury. It ranks as my most valuable personal failure.