“Give it one more shot,” deadlocked group told.
A frustrated jury will try again Tuesday to reach a verdict in the defamation suit brought by former Gov. Jesse Ventura after deliberating for five days and telling the judge that they are deadlocked.
At midday Monday, the 10-member jury informed U.S. District Judge Richard Kyle that they could not reach a verdict, but the judge instructed them to keep trying. “We have not reached a unanimous decision,” the jury wrote in a note to Kyle. “We feel we will not come to a unanimous decision.”
Kyle read the note aloud at a noon hearing with the jury and attorneys in the courtroom, then told the 10 jurors to “give it one more shot.” He repeated that his instructions required a unanimous verdict.
Jurors looked grim-faced as they returned to the jury room.
Although the reasons for the jury’s deadlock are unclear, the attorneys for both sides were called to Kyle’s chambers at 4:15 p.m. and asked by the judge to answer some questions and return 15 minutes later.
The attorneys did so. They emerged to tell reporters the jury would resume deliberations at 9 a.m., but gave no insight into the substance of the discussions with Kyle.
One of Ventura’s attorneys, David B. Olsen, was asked whether he would seek a new trial if a mistrial is declare. “No comment,” he answered.
Deliberating since Tuesday
Jurors have been deliberating since last Tuesday, for a total of about 31 hours, in the suit filed by the former governor claiming that the late Navy SEAL Chris Kyle fabricated an account of a 2006 bar fight in his bestselling book, “American Sniper.”
Kyle wrote that he punched out a “celebrity” ex-Navy SEAL who criticized the SEALs’ role in the war in Iraq. He identified the man in interviews as Ventura, whose lawsuit claims the account ruined his reputation.
Chris Kyle was killed in 2013, and Ventura continued the suit against his estate, managed by his widow, Taya Kyle.
The trial began July 8 at the federal courthouse in St. Paul with the selection of the six-man, four-woman jury. Jurors took last week weekend off and shortly after they resumed deliberations at 9 a.m. Monday they requested that an easel and pens be brought to the jury room.
Around 12:15 p.m., the judge began the hearing with the jurors and attorneys present.
Judge talks to jury
At the hearing, Judge Kyle told jurors that they should “not lower your standards,” but he urged them to continue deliberating.
He pointed out that if there was a hung jury, the case could be tried again. “There’s no reason to think the case would be better tried” a second time.
“I’m going to give you one more time,” Kyle told them.
He said if they can’t reach a decision, “let me know and we’ll deal with it at that time.”
Kyle praised the jury, noting that all members showed up on time each day. “You have been a most conscientious jury,” he said, adding that they equaled any he has had in his 22 years on the bench.
If the jury cannot reach a unanimous verdict, a new trial would depend upon a decision by Ventura and his attorneys.
A new trial would result in a new jury being empaneled. Witnesses would be asked once again asked to fly in from around the country; presumably some would not be available, because they are deployed overseas or other reasons.
The suit was filed in 2012; many depositions have been taken and numerous pretrial motions filed by attorneys by both sides and ruled on by Judge Kyle, who is no relation to the late defendant.
‘Evidence … disputed’
Monday’s hearing was the first session in open court since the case went to the jury. Since then, the jurors have submitted three questions to the judge — one question each on Tuesday, Wednesday and Thursday. But the contents of those questions were not revealed, other than to the attorneys.
Jane Kirtley a journalism professor at the University of Minnesota and an expert on defamation cases, said, “The evidence is strongly disputed by both sides and [Chris] Kyle is dead, so he can’t be cross-examined. If one person disagrees with any one of the questions [posed by the judge], be it falsity, defamation or actual malice, then the jury is deadlocked.”
Joseph Daly, a professor emeritus at Hamline University Law School, speculated that jurors were still debating what was true or false in Kyle’s book.
“If they had already determined it was false and were only talking about money, they could come to some compromise,” he said, noting that Ventura’s lawyers had asked for up to $15 million, but the jurors could award as little as $1.
If a hung jury is declared, Ventura’s attorneys could seek a new trial, but a mistrial might also encourage both sides to seek a settlement, said Mark Anfinson, a local media attorney. Settlement talks were held this spring, but failed.
The case is drawing interest far beyond the Twin Cities.
The Media Law Resource Center in New York City has been sending out daily updates on the Ventura defamation trial to its 2,000 media lawyers who belong to about 325 law firms, corporations and associations, said Sandra Baron, the organization’s executive director.
She said there is probably considerable interest among the nation’s media attorneys because there are so few defamation trials.
Randy Furst • 612-673-4224 Twitter: @randyfurst