There is no instruction that tells a jury to find the defendant guilty or the verdict will be set aside.
And that's not what Jefferson County Judge Donald Floyd said to the jurors in last year's wrongful death trial against DuPont, but it seems to us that he might as well have.
After hearing six weeks of arguments in Floyd's courtroom, jurors concluded that DuPont was not responsible for the death of former employee Willis Whisnant Jr. from mesothelioma.
Case closed? No sir.
Judge Floyd threw out the jury's verdict and ordered a retrial. On what grounds? He didn't say. To our amazement, an appeals court upheld his decision. But the Texas Supreme Court was not as obliging. They want to know why he reversed a jury decision.
Judge Floyd--or should we say, Judge and Jury Floyd--now has to put his reasons in writing and the court will decide if his reasoning was proper. The state's High Court ordered as much last week, telling Floyd that it cannot decide whether he abused his discretion until it hears his rationale for tossing the DuPont verdict. The High Court apparently thinks hardworking jurors deserve to know why the decision was pitched by Judge Floyd.
Seems fair enough. And the defendant, DuPont, deserves to know why a jury verdict in their favor was dumped. Texas citizens have a right to know if the elected judge is dispensing justice impartially. That kind of information could be handy in the 2010 judicial elections.
At times juries have been criticized for being too sympathetic to plaintiffs in personal injury cases, seeming to subconsciously identify with the plaintiffs and demand a higher burden of proof from the defendants. And there have been judges who might share the blame for this one-sided justice by encouraging or allowing one-sided arguments to prevail.
The jury in the DuPont case was not impressed by the arguments of plaintiff's attorney Glen Morgan of Beaumont's Reaud Morgan & Quinn law firm. The jury's decision must have come as a surprise to Morgan and Floyd, but disappointment isn't a legal argument in Austin. And setting aside a verdict without saying why is not fair.
Has Judge Floyd forgotten that justice is supposed to be blind? The jury of public opinion is still out in this case. Meanwhile, Judge Floyd is entitled to something that seems to be missing in this case: the presumption of innocence.