January 26, 2008 in City

Racial remarks prompt new trial

Judge cites jury’s nicknames for lawyer
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)

A Spokane County Superior Court judge has ordered a new trial in a medical malpractice case where a Spokane attorney of Japanese descent was repeatedly referred to as “Mr. Kamikaze” and other racially charged names during jury deliberations.

Judge Robert D. Austin said he was surprised when he received attorney Mark D. Kamitomo’s motion for a new trial in mid-December, based in part on the racial comments.

“We’d hoped we’d moved beyond this, and we apparently have not. It’s upsetting,” a visibly emotional Austin said during a court hearing Friday.

Austin said he could not be confident that the jury verdict that went against Kamitomo’s client and cleared a local doctor of negligence was not a result of juror misconduct.

“We have uncontested affidavits that these remarks were made. It’s an expression of prejudice to Mr. Kamitomo’s ethnicity,” Austin said.

The trial verdict was read on Dec. 7 – the 66th anniversary of the Japanese bombing of Pearl Harbor. According to Jack Marchant and Mark Costigan, two jurors who approached Kamitomo after the verdict, five other jurors – three women and two men – mocked Kamitomo during their closed-door proceedings, calling him names including “Mr. Kamikaze,” “Mr. Miyashi” and “Mr. Miyagi,” a character in the movie “The Karate Kid.”

One juror also said that because the verdict was going to be read on Pearl Harbor day, the remarks made about Kamitomo were “almost appropriate,” according to Costigan’s affidavit.

In a second affidavit filed Jan. 14, Marchant, a Washington State University professor in Spokane, says affidavits weren’t obtained from two jurors, Patricia Menke and Zorana Beerbohm, who used Asian nicknames to refer to Kamitomo.

“To the best of my recollection, these two individuals and Brenda Canfield, who has admitted to referring to Mr. Kamitomo in her Affidavit as ‘Mr. Miyashi,’ were the three female jurors,” Marchant said in his affidavit. Juror Steven Walther referred to Kamitomo as “Mr. Havacoma,” showing a “lack of objectivity,” Marchant said.

Brian Rekofke, the attorney for Dr. Nathan P. Stime, the Spokane doctor cleared of malpractice charges by the jury’s “no negligence” finding, obtained affidavits from seven jurors as part of his motion opposing a new trial.

Those jurors didn’t deny the names were used, but said they were used not as racial insults but because they had trouble pronouncing the names of both Rekofke and Kamitomo.

That’s implausible, Austin said, noting that no juror affidavits reported any “bastardization” of Rekofke’s “Middle European” name.

“Frankly, I can’t conceive of people seriously undertaking their responsibility and using those kinds of nicknames when it’s one-sided,” Austin said.

Rekofke is an attorney with Witherspoon, Kelley, Davenport & Toole PS, the firm that also represents The Spokesman-Review.

Rekofke asked Austin to bring the jurors into court and question them about their comments. “The jurors are very upset they are being called a racist jury. They’d like to be heard,” Rekofke said.

Austin rejected that request. “What if they say, ‘I’m not a racist’? What does that do for me?” Austin asked. He noted that in the history of discrimination cases in the United States, “people are never forthright with their prejudices … rarely if ever will people disclose that.”

When the new trial of Darlene and Bill Turner v. Dr. Stime is scheduled, Austin said, he’ll need to determine a way to directly address the issue of Kamitomo’s ethnicity during voir dire, the process of selecting a jury. “At a new trial, we’re going to have a difficult time talking to jurors about Mr. Kamitomo’s ethnicity. But it will be discussed,” he said.

After the hearing, Kamitomo said he was happy with Austin’s ruling. “The judge paid attention and did the right thing,” he said.

Kamitomo grew up in southern Alberta and graduated from Gonzaga Law School in 1989. He also practices in Honolulu. His father, Doug Kamitomo, was 8 when his family was seized in Vancouver, B.C., and relocated to a Canadian internment camp after the Japanese attacks on Pearl Harbor.


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