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Comments by jurors at case’s heart

Three state appellate judges were asked Tuesday to reinstate a verdict that was favorable to a local doctor after five jurors in the original malpractice trial reportedly made derogatory comments about the Japanese heritage of one of the plaintiff’s attorneys.

The case has attracted statewide attention among dozens of minority legal organizations, many of which filed arguments in support of upholding the decision by now-retired Superior Court Judge Robert Austin. The judge granted a new trial in 2008 after two of the 12 jurors gave sworn statements about other jurors’ comments about attorney Mark Kamitomo, who represented the family who sued the physician, alleging malpractice. The jury found no malpractice and the doctor seeks to restore the jury’s decision.

Jack Marchant, a Washington State University professor who was a juror in the trial, told Austin that five of his fellow jurors called Kamitomo “Mr. Kamikaze,” “Mr. Miyashi,” and “Mr. Miyagi,” a character in “The Karate Kid.”

The comments, according to Marchant and another juror, were made as the jurors deliberated the lawsuit brought against Dr. Nathan P. Stime by Darlene and Bill Turner. The case was decided Dec. 7, 2007, which was Pearl Harbor Day, prompting one juror to add that the verdict against Kamitomo’s client was “almost appropriate.”

Stime’s attorney Mary Spillane told the three appellate judges she did not believe the jurors’ comments amounted to racial bias. She also asked what a rejection of her appeal could mean for future cases.

“I would suggest that what we have done is we have encouraged losing litigants to go back and fire up the jurors for any comments made that were insensitive or boorish or politically incorrect or any kind of derogatory comment about a lawyer, about a witness, about anybody connected to a trial so we can seek a motion for a new trial,” she said.

Appeals Court Judge Dennis Sweeney asked Spillane whether she wanted the appellate judges to rule that the comments were not racially biased and overturn Austin’s ruling.

Yes, Spillane responded. “Even if one can assume that these names that were used were racially derogatory toward Mr. Kamitomo, then it would be a leap of faith to say that as a result the jurors could not fairly adjudicate this case for a Caucasian client.”

Kamitomo called Spillane’s argument “ludicrous.”

“Mr. Miyagi of ‘The Karate Kid’ is clearly a caricature of my Japanese heritage,” said Kamitomo, whose father was interned in a concentration camp during World War II. He pointed out that Judge Austin wrote in court documents that he didn’t believe the evidence supported the jury’s verdict even before he learned of the racial comments.

Spillane further asked the judges what would have happened if a juror made a reference about Adolf Hitler in describing a Caucasian lawyer of German ancestry.

“It’s the same thing. Maybe he was acting Hitlerish. It doesn’t mean all of the sudden that there is racial (bias) that can be inferred that then translates into bias to their client in the case,” she said.

Judge Sweeney said Spillane was asking the judges to “second-guess the conclusion by a trial judge that these remarks had the potential or actually did influence the verdict in the case.”

She agreed. “What we have are two Caucasian clients. We have one lawyer of Japanese ancestry who is being called some names, which I submit are not on their face racially derogatory or racially prejudicial,” she said. “We don’t have any evidence that the Turners must not have a case because they couldn’t find a Caucasian lawyer.”

The judges didn’t make a decision on the appeal Tuesday.