Were they really a jury of my peers?

Image by Ari Hahn via Flickr

As a reporter for more than 15 years, I covered many criminal and civil trials in state and federal courts, and always regarded the jury system as a hallowed part of our legal system. But as a plaintiff, I became aware of the system's serious shortcomings. Having lost my case at the hands of eight total strangers who may not trust journalists, I now believe I would have done better if I had asked a judge to hear and decide my age-discrimination and retaliation claims.

My trial started on the eve of Passover (March 29), and I unsuccessfully asked Superior Court Judge Joseph S. Conte in Hackensack to postpone jury selection until after the holiday. As a Jew, I wanted a jury that was representational of North Jersey, meaning I wanted one or two Jews on the panel, along with an African-American. One of my jurors may have been Jewish, but a childless black nurse in her 60s who worked at night was excused at the request of North Jersey Media Group.

The judge asked prospective jurors about their backgrounds and their opinions of the jury system, lawsuits and other issues, including whether they read The Record. But one of my big strategic blunders is not proposing questions on their opinions of reporters -- now that I recall how some surveys have rated journalists just above car salesmen. The lawyer who advised me also overlooked this approach.


In fact, in my opening statement, I told the jurors I was proud to call myself a journalist for nearly 40 years, and that I had devoted my life to reporting, writing and editing stories -- not marrying until I was in my late 50s. I told them I was a skilled story teller who would be guiding them on a journey into the newsroom of a big suburban daily paper.

Juror No. 1, the foreman, was a white-haired gentleman from Wyckoff, possibly a tax director. Was that skepticism I saw on his face when I testified or addressed the jury? 

No. 2 was a 48-year-old Franklin Lakes woman who is a pilot for American Airlines and is married to a United pilot. No. 3 was a seventh-grade social studies teacher in her mid-20s from Ramsey who had worked in her father's law office, and who felt there are too many suits.

No 4 was a civil engineer from East Rutherford in his early 30s who always had a laptop out during breaks. No 5 apparently was the oldest member of the panel, from Lyndhurst, who had subscribed to The Record for 45 years, but who also felt there were too many lawsuits. 

No. 6 was from Englewood, a Greek woman, judging from her name, who said she advertises in The Record but doesn't read it. No. 7, who lives in Hillsdale and works at Best Buy, was the third one to say there are too many suits. And No. 8 was an unmarried women from Fort Lee who does yoga every day. Several jurors said their favorite TV program is "24."

One of the prospective jurors was a waiter at a Vietnamese restaurant in Fort Lee that I had written about and patronized, and he volunteered when the judge addressed him that he knew me. "Good luck, Victor," he said on his way out of the courtroom.


In retrospect, I am not sure the jurors understood any of my testimony about reporting and writing stories, fighting for my lead paragraphs or disagreeing with an editor over productivity or whether a story should even be covered. Did they care anything about these inside-journalism issues?

I also don't think they understood how I had to shepherd my food stories through Liz Houlton's error-prone features copy desk, being forceful at times, even if it meant having to revise a page or layout. Did that earn me a reputation of being hard to deal with in the editor-driven newsroom?

The jury heard a good deal about the NJMG employee manual, which encourages a free and open dialogue and urges staffers to suggest ways to improve methods and products. But they also heard Houlton testify emphatically that the newsroom "is not a democracy -- no business is."

There is no question the jurors were attentive. They were allowed to take notes and write out questions, which would be answered, if both sides agreed. Only one of them, Juror No. 5, didn't seem to be paying close attention.

As for their questions, the misspellings and grammatical errors surprised me a little, but it was the questions themselves that indicated some of the jurors may not have grasped or appreciated -- despite many references -- that there is a strong New Jersey law against discrimination in the workplace.

The most troubling question was this one: "Did anyone at the newspaper, at any time, tell you verbally or in writing that you were denied the food editor's position because of your age?"

Taking the witness stand, I answered no, but should have added that no editor in their right mind would have said anything about age, because such a statement provides the employee with the proverbial smoking gun. I had already testified that the reasons given for denying me the food editor's job were put forward many months later -- only after I filed charges with the Equal Employment Opportunity Commission -- and were what the law calls "pretext." Did the jurors even hear me?

Former Food Editor Patricia Mack testified on my behalf and directly contradicted testimony from her former bosses, Houlton and Barbara Jaeger, who claimed Mack told them "several times" that I was difficult to deal with as a freelance writer for her section. Both Jaeger and Houlton used the "several times" estimate, and both could not recall any details or even when Mack allegedly spoke to them about me. (At Jaeger's first deposition, she said she couldn't remember or couldn't recall details 23 times.)

Even though I brought out that Jaeger had been Houlton's boss for many years and they often went to lunch together, the jury believed them and not Mack. I also noted that Mack had no interest in the outcome of the case and had no motive to lie. Jaeger and Houlton, on the other hand, were doing their best to defend the selection of an unqualified candidate half my age and probably testified to keep their jobs, I told the jury.

Mack was not allowed to testify about the "lies" in Jaeger's last performance review of her before she left in 2006, how she refused to sign the review and how she filed a complaint with the Human Resources Department, which did nothing -- all because she could not say for certain whether age was a factor in how Jaeger and Editor Frank Scandale treated her after 20 years as food editor.

She recalled how Scandale treated her dismissively -- as if he was brushing "a bug" off his shirt. But the judge wouldn't allow the jurors to hear any of this.

At the end of testimony, the judge explained to the jurors the "false in one -- false in all" principle. "If you believe a witness deliberately lied to you, on any fact significant to your decision in this case, you have the right to reject all of that witness' testimony. However, in your discretion, you may believe some of the testimony and not believe other parts of the testimony."


In my closing argument, I reminded the jurors: "Everything I did was in keeping with the values of the company. I did everything they said I could do, everything I have always done in the past, and they penalized me [after I filed a lawsuit]."  

I gestured out the big courtroom windows to the gilded statue atop the dome they could see from the jury box (photo above) and noted the figure was holding a flame aloft in a search for the truth. I reminded them I believed I was seeking truth in my many years as journalist, but now it was their job as the judges of the facts to decide what really happened to me in the newsroom. 


But these jurors apparently had made up their minds long before I addressed them. They must have found me to be a nosy, judgmental journalist who didn't have a right to challenge anything an editor or publisher did, even if I believed he or she was breaking the law. It took them only an hour to return their unfavorable verdict last Friday.

Look for more about the trial in future posts.