Jury was close to giving up Tuesday when judge proposed a split decision.
Jurors were at an impasse in the Jesse Ventura defamation case when the memos started flying.
The exchange, revealed in court documents made public after the verdict, shows the behind-the-scenes maneuvers that turned a jury’s stalemate into a surprising $1.8 million jury award to the former governor.
Memos filed late Tuesday show how U.S. District Judge Richard Kyle worked rapidly with attorneys from both sides to resolve the deadlock that appeared headed for a mistrial.
The memos indicate that jurors were close to giving up on Tuesday morning, when Kyle dropped his insistence that they reach a unanimous verdict. He asked them if they could reach a 9-1 verdict. When that failed, he asked if they could decide by an 8- 2 vote, not knowing which side had the majority.
Jurors split 8 to 2 in favor of Ventura, and the verdict was announced to a stunned courtroom. Ventura had been seen as the underdog going into the trial.
Attorneys on both sides were rolling the dice in agreeing to a less-than-unanimous decision, but it was apparent neither party was interested in a hung jury. It could have resulted in a second trial, costing large amounts of money to both sides and no guarantee of a unanimous verdict for either side.
For eight days, jurors had listened to a lineup of witnesses for both sides, then began deliberating on July 22. They were asked to decide whether the late Navy SEAL Chris Kyle fabricated a subchapter in his bestselling book, “American Sniper,” when he claimed he punched out a “celebrity” called “Scruff Face” at a bar after the man allegedly made disparaging remarks about America, U.S. policy in Iraq and said the SEALs “deserve to lose a few” in Iraq.
Kyle later told the media that Scruff Face was Ventura.
The first question sent to Judge Kyle last week by the jury put the focus on a key issue in the case: Should jurors concentrate on whether it was true Ventura made the three incendiary remarks, or should they be concerned with the overall truth of the subchapter? The judge wrote back that the three statements should be considered but also “the story as a whole.”
Other questions followed as the days wore on.
The maneuvering that led to the verdict began Monday morning when the jury sent a note to Judge Kyle saying it was deadlocked and unable to reach a unanimous decision.
Kyle met with attorneys to discuss the options. He then convened the court and told the jury to try once more to come to a consensus.
At 4 p.m., Monday, the jury forewoman sent Kyle a note: “We the jury have continued to deliberate as instructed. At this time, we have not reached a unanimous decision.”
A second note from another juror, asked if the jury had to believe Chris Kyle was telling the truth or, “Do we have to believe that Chris Kyle thought he was telling the truth?”
After consulting with attorneys, the judge wrote the jury a three-paragraph response Tuesday morning, which said they must decide whether the story was “materially false” and that Chris Kyle knew it was false or believed it was false or had serious doubts about whether it was true or false when he published it.
The jury resumed deliberations at 9 a.m. Tuesday and quickly concluded that they were unable to end the standoff inside the jury room.
The forewoman sent a hand-printed note to Judge Kyle, at 9:45 a.m. stating, “We, the jury, have reviewed the response. We, the jury, have not come to a unanimous decision. We do not believe that a unanimous decision can be reached.”
Shortly before 10 a.m., attorneys for both sides were summoned to Judge Kyle’s chambers. He asked them if they would accept a less-than- unanimous verdict.
The two legal teams left Kyle’s chambers to consult among themselves and presumably to consult with their clients. Attorney David B. Olsen’s team contacted Ventura. For John Borger’s team, it was presumably Taya Kyle, Chris Kyle’s widow, who oversees the estate. Legal observers have indicated that Borger would have consulted the insurance company covering defamation claims for HarperCollins, publisher of Chris Kyle’s book. The lawyers returned to the judge’s chambers with their responses.
At 11:05 a.m., Judge Kyle sent the jurors a typed memo: “The parties have agreed that if you cannot reach a unanimous verdict, then nine of you may return a divided verdict.”
Kyle got a note back at 11:12 a.m.: “We, the jury, would not be able to deliver a divided verdict with the opinion of nine jurors.” It was signed by the forewoman, whose name has been redacted. Judge Kyle met with the attorneys from both sides again, and they agreed to try to get an 8-2 verdict.
At 11:40 a.m. Kyle wrote that, “The parties have agreed that if you cannot reach a unanimous verdict, then eight of you may return a divided verdict.”
‘We need an envelope’
At 1 p.m., a juror, presumably the forewoman, sent one last hand-printed note.
It said, “Dear Judge Kyle, we the jury have reached a divided verdict. P.S. We need an envelope for the verdict.”
Within minutes, attorneys were notified and they confirmed there was a verdict to the dozen reporters staking out the seventh-floor lobby.
Kyle convened the court and read the verdict form:
“Did Plaintiff Jesse Ventura prove his claim of defamation against Chris Kyle?” jurors were asked.
The jurors checked “Yes.”
“What amount of money, if any, will fairly and adequately compensate Plaintiff Jesse Ventura for damages directly caused by the defamation?”
The jurors filled in the amount: “$500,000.”
“Did Plaintiff Jesse Ventura prove his claim of appropriation against Chris Kyle?”
The jurors checked, “No.”
“Did Plaintiff Jesse Ventura prove his claim of unjust enrichment against Chris Kyle and the Defendant Estate?”
The jurors checked “Yes.”
“By what amount of money, if any, has the Defendant Estate been unjustly enriched?”
The jurors wrote in “$1,345,477.25.”
Their signatures were redacted on the form
The jurors were polled by Judge Kyle, asking where they stood on the verdict. Eight said “yes” and two said “no.”
Erin Crum, vice president of corporate communications for HarperCollins, said Wednesday that the “Scruff Face” subchapter will be removed from future editions of the book.
“We were surprised and disappointed to hear about the jury’s decision and are supportive of Taya as she moves forward,” Crum said by e-mail. “We steadfastly remain honored to be Chris’s publisher.”
Randy Furst • 612-673-4224 Twitter: @randyfurst