January 15, 2008 in City

Lawyer says Japanese heritage affected verdict

By The Spokesman-Review
 
Brian Plonka photo

Spokane attorney Mark Kamitomo, photographed in January 2008, believes he was a victim of racial slurs by jurors who deliberated one of his malpractice cases in Spokane Superior Court.
(Full-size photo)

The medical malpractice verdict in Spokane County Superior Court was read on Dec. 7, 2007 – Pearl Harbor Day.

Spokane attorney Mark D. Kamitomo was unhappy with the jury verdict, which went against his clients and cleared a doctor accused of negligence in a cancer diagnosis.

But Kamitomo was more disturbed by what he heard next.

Juror Jack Marchant, a Washington State University professor, sought out the malpractice attorney after the trial was over and told him five jurors – three women and two men – had disparaged Kamitomo in closed-door jury proceedings, calling him “Mr. Kamikaze,” “Mr. Miyashi” and “Mr. Miyagi,” a character in the movie “The Karate Kid.”

“I was surprised,” Kamitomo said. “People who are friends often kid around and insult each other. My first inclination was to ask, is this just harmless? But as (Marchant) told his story, that wasn’t how it came across.

“It was shocking to him,” Kamitomo said.

Marchant also said he believes the jurors’ bias impaired their ability to be objective in the malpractice case.

A second juror, Spokane Transit Authority shipping clerk Mark Costigan, also told the same tale of racial bias in the jury deliberations.

“Costigan approached me the same day. He didn’t know the other juror had come forward,” Kamitomo said. Costigan also has provided an affidavit on what he observed in the jury room.

One juror remarked on the coincidence that their verdict would be read on Pearl Harbor Day – saying that given the date, another juror’s racially insulting remark about Kamitomo was “almost appropriate,” Costigan’s affidavit says.

Kamitomo – whose father, Doug Kamitomo, was 8 years old when his family was seized in Vancouver, B.C., and relocated to an internment camp at Lemon Creek, B.C., after the Japanese attacks on Pearl Harbor – is asking Superior Court Judge Robert D. Austin for a new trial, based in part on the jurors’ comments.

“Plaintiffs are entitled to a new trial because the evidence did not support the verdict and, further, the verdict was not decided by an unbiased and unprejudiced jury,” his motion says.

Austin will hear the motion on Jan. 25.

Brian T. Rekofke, an attorney for Dr. Nathan P. Stime, the Spokane general practitioner who is the defendant in the medical malpractice case, opposes Kamitomo’s motion for a new trial for plaintiffs Darlene and Bill Turner. His formal response is expected to be filed Friday.

“The verdict was 10-2,” Rekofke said Monday. “The affidavits filed were by the two dissenting jurors. Mark is a hell of a good lawyer, but I’m disappointed that he’s playing the race card here.”

Rekofke has obtained affidavits from seven other jurors that contradict the claims of racial bias.

“I had trouble pronouncing Mr. Kamitomo’s name,” as well as Rekofke’s, said Melody Weaver, a registered nurse who served on the jury, in her affidavit. “My vote finding that Dr. Stime was not negligent was based on the evidence and not in any manner, shape or form affected by the race or ethnicity of any of the parties or their attorneys,” Weaver said.

Other similarly worded affidavits were signed by jurors Jack Lisenbee, Deborah Hagarty, Steven Walther, Brenda Canfield, Jon Smitham and David Smith.

Canfield said she referred to Kamitomo as “Mr. Miyashi” as a “memory device” to recall what he’d said in court. Smith admitted calling Kamitomo “Mr. Kamikaze” but denied any racial bias.

Jon Smitham, the presiding juror who signed the “no negligence” verdict, said he heard his fellow jurors call Kamitomo “well-prepared” and an “excellent attorney.”

“At no time did I hear any of my fellow jurors refer to Mr. Kamitomo in racially derogatory terms,” Smitham said.

Kamitomo grew up in southern Alberta and graduated from Gonzaga Law School in 1989. He was the first law clerk for former Washington Supreme Court Justice Richard Guy, and the two have remained friends and legal associates. Kamitomo also practices in Honolulu, where Guy lives in retirement.

Kamitomo, 51, said he’s encountered the occasional racial slight in his personal life – but not in his legal career.

“I’ve never experienced this here or elsewhere. I’m not someone who cries race when I lose. In a million years, I never thought a jury would have subtle biases towards me and would take that out on my client. We want to think we’re free from that in our system of justice,” he added.


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