The Will and Grace Case Page
The author, Dean Hartwell, served as a juror and foreperson in the case Kohan v. NBC. David Kohan and the plaintiffs sued NBC Studios and NBC for breach of contract and fraud for matters related to the TV show that Kohan had helped to create, "Will and Grace." After a three-and-a-half month trial, we, the jurors came to a verdict worth approximately $49 million and a unanimous finding of fraud (worth potential punitive damages). I submitted this verdict on behalf of the jury.
That night, NBC's attorneys, claiming they had just learned I was the foreperson, Googled me and found excerpts on my website (this one) that they used to make a motion for my dismissal and for a mistrial (see Motion for Mistrial in PDF). They stated that I had not revealed a bias against NBC at voir dire.
The official transcript (in PDF) shows the day's conversations in court. Starting on page 7788, it shows Ettinger asking me cross-examination type questions that did not allow me to reveal any of this information. I later copied the official transcript and wrote in bracket my commentary on the chambers portion of the transcript. Judge Ettinger dismissed me but has never responded to anything I have written to him on this matter, including this letter, sent in March 2009:
Two Years of Reflection on Kohan v NBC Summarized in One Short Letter (posted 4/24/09)
Dear Judge Ettinger,
The second anniversary of the conclusion of Kohan v NBC is
approaching. It took two years of studying our meeting in the
chambers, but I have finally summarized the key issue succinctly and I
leave this for you as my last message* on Kohan:
1. You brought to my attention in chambers an article I had written two
years before (May 2005).
2. NBC had claimed in its Motion to Dismiss that it showed bias on
my part against them and the corporate media despite the fact that the
comments addressed only three specific news stories.
3. You then asked me what my beliefs were about NBC at the time of
voir dire (January 2007) ASIDE FROM MY WRITINGS.
4. I replied that I believed that on occasion, NBC and the
corporate media took direction from the government about decisions on
stories to publish, a statement that did not reflect bias against the
media. If you needed clarification about that, you had the
authority to ask follow up questions.
5. If you did not believe my answer, you had other articles within
the Motion to Dismiss in which I displayed an even-handed attitude about
NBC and the corporate media, such as "Try Cheney in the Media."
These articles came out AFTER May 2005 and none reflect a negative bias
toward NBC or the corporate media.
Where was the bias? It was nowhere to be found at the time of voir
dire. My statement and the Motion to Dismiss itself provide
irrefutable proof of that. What a shame that I could not appeal
this matter because I would have won.
If I am ever again asked to answer questions for voir dire, I now
know one thing from our experience: the court can and will use anything
against me and ignore exculpatory evidence. Your actions showed it
and your silence confirms it.
Dean Hartwell
*Note: Documentation available at
www.deanhartwell.com/WillandGrace.htm
CC: Ronald Nessim (Lead Attorney for Plaintiffs), Henry Shields, Jr. (Lead Attorney for Defendants) and Rosalie Luna, Courtroom Assistant of case
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NBC Misfired on its Motion for Mistrial
Here is my rebuttal to the Motion for Mistrial with references made to the Motion by page and line:
Page 1
Line 2 – “On April 25, 2007…”
Fact: While Hartwell maintained his site during the trial, he wrote
about issues not connected with the case.
His only mention of anything having to do with the defendants was
a reference to “Meet the Press” in his “War Games on 9/11” article of
April 12, 2007 in which he cited NBC favorably to make a point about a
comment Vice President Cheney made.
Line 19 – “Mr. Hartwell’s website contains…”
Fact: Hartwell’s website contained over two hundred articles as
of April 25, 2007. He
expresses few opinions on the defendants, some of which are positive and
some of which are negative.
Line 21 - “For example, an article dated May 19, 2005…”
Fact: This paragraph was taken out of context.
Hartwell criticizes NBC for playing three specific stories and
withholding coverage of three other specific stories, all mentioned two
paragraphs earlier.
Hartwell never accuses the defendants of criminal or fraudulent conduct.
Page 2
Line 4
– “Similarly, Hartwell stated in
an article dated November 1, 2005…”
Fact: This article links back to the “Corporate Media Favors Incumbents”
article to re-state the point about the corporate media sometimes
withholding stories. This
same article commends the corporate media for its reporting of Watergate
and Iran-Contra.
Line 8 – “Mr. Hartwell’s belief that corporate media companies…”
Fact: Hartwell never states any belief that NBC or any member of the
corporate media covered up information on 9/11 or assisted with the
attacks in any manner.
Line 13 - “Mr. Hartwell concealed his bias…”
Fact: Hartwell had no bias for or against any of the parties at any time
during his involvement with the trial.
Therefore, he concealed no bias.
Line 15 - “For example, Question 35…”
Fact: All voir dire and
questionnaire questions asked of Hartwell inquired of feelings or
beliefs. On his website,
Hartwell merely stated opinions, both positive and negative, about the
defendants. He quite
rightly distinguished opinions from feelings and beliefs as the latter
two are more deeply held. There was no reason for him to recall
the opinions, let alone bring them up.
Line 28 – “Mr. Hartwell is the author of dozens of articles…”
Fact: The defense never revealed the name of Hartwell’s book, Truth
Matters: How the Voters Can Take Back Their Nation, which has
nothing to do with the defendants.
Page 3
Line 10 – “Mr. Hartwell’s failure to reveal…”
Fact: Again, Hartwell had no bias.
The call for his removal or for a mistrial was not founded.
After removing me, Ettinger told the other jurors that I had been removed for not revealing information on his web site at voir dire. He also asked them questions of how much influence I had in the proceedings. The jurors later said they knew nothing about the web site or my opinions and insisted that I was “quiet” and even “passive.” The judge threatened a mistrial but the parties settled, anyway.
The judge told the media present that my web site was “anti-corporation in general, and anti-NBC in particular,” something that not even the harshest critics of my blogging would say. The defense attorney said that no one knows what happens in the deliberation room, even after learning from jurors that I played no major role in the verdict. Apparently, he did not trust the very jurors he helped select.
I gave an interview to someone in the media who had followed the trial closely and wrote a new article for this web titled, “None Dare Call it Reason” (see below). The article, which laid the groundwork for my case of innocence by giving a full account of the context of my remarks about NBC and the rest of the media, was followed by several others on this page.
My case for innocence has been tried in
the absence of a judge, attorneys or a jury.
I simply use this site to get my message across and to respond to the
false accusations made by those who did not bother to read this web site
or to understand what it is about.
There is no official court in
Read a satirical piece that speaks the truth of what happened here! Read More
None Dare Call It Reason (4/29/07) by Dean Hartwell
Recently, I served on a jury for three-and-a-half months in the “Will and Grace” case, just settled between plaintiffs David Kohan and Max Mutchnick (who co-created the show) and their talent agent, Scott Schwartz and defendants NBC and NBC Studios. Before the settlement, the jury, of which I was the foreperson, reached a verdict and was prepared to deliver it after deliberating for eight days.
The judgment went for the plaintiffs on twelve of the fourteen verdict questions, awarding them approximately $49 million and a chance for punitive damages. The plaintiffs had presented a strong factual case and we mostly voted for them unanimously, even though only nine votes were needed per question except for the punitive damage question, which required all twelve votes.
While we were waiting in the jury room, the courtroom assistant asked me to step outside to the hallway. She led me to the judge’s chambers, where several people, including the attorneys of the parties, the courtroom reporter and the judge waited.
I didn’t know what they wanted to talk about. I took a seat facing the judge, Warren Ettinger. He began by saying, “Mr. Hartwell…” which I took as a bad sign.
It became clear to me that in-chamber conversations with a judge are meant to be one-sided. For the next forty minutes, he read excerpts of an essay I had written two years ago (May 2005) and asked me questions about it.
The essay, Corporate Media Favors Incumbents (5/19/05), makes mention of NBC as one of many sources of the corporate media that miss certain stories of importance. I listed stories that I thought the corporate media should have covered then and called other stories, like the story of a runaway bride, “phony.” I also named ABC, CBS and FOX and their respective parent companies.
As for the article, I said the news media sometimes does not run certain stories at the behest of certain people in government. I could not understand what the news media had to do with the case.
The judge asked why I didn’t bring it up in a jury questionnaire or in response to then-Judge Elias’ questions, which asked:
I don’t recall precisely which questions he asked, but I told him that when I read the form in January, I held no bias toward any of the parties and held none at the present time. I was always a fair and impartial juror without any beliefs that any of the parties could regard as bias and thus had no reason to answer these questions. Since I was not given much time to reply in the chambers, I thought of other reasons later as well.
First, I have written over two hundred columns for my site. I simply could not recall all of them when I read the questionnaire and listened to Judge Elias and never believed the site "is critical of corporations in general -- and NBC in particular," as Judge Ettinger said to the media later.
Second, to come to Ettinger’s conclusion about my site in a fair and unbiased manner, he would need to read further into my articles. I have created an archive, which allows one to go through articles by topic. Had he looked, he may well have found See You at Gitmo (10/25/06). This column cites MSNBC (a part of NBC) favorably and praises Keith Olbermann, one of its employees, for his on-air work.
To put the idea of whether my bias exists into context, the judge could have considered my column Free Riad (5/13/02) about a friend of mine, a man of Palestinian ancestry, who was illegally detained in Israel back in 2002. I harshly criticize Israel for its actions in this column. That does not make me biased against Israel.
In fact, I wrote even-handed columns about the Palestinian-Israeli conflict in Solution for Peace in the Middle East (3/7/02) and Using PR for Peace (4/3/02). I express sympathy for Israel for being around hostile nations for so long and I actually compliment President Bush for one of his actions.
I acknowledge my bias against the Bush Administration since I have written several columns opposing its policies. However, the defense’s attempts to translate this bias into bias against NBC fall flat. The very article they gave to the judge to show to me is titled “Corporate Media Favors Incumbents.” They selected some of my columns suggesting government agent complicity in 9/11 (failing to acknowledge I cited NBC’s “Meet the Press” as a source. Why would I cite sources I have a bias against? Think about it.) I never hold NBC responsible for the events of 9/11. They also overlooked an article about the JFK assassination where I question members of the Democratic Lyndon Johnson Administration. I don’t just criticize Bush. It only seems that way because he became the president one month after I started the site.
There was bias at the trial. From my point of view as a juror, the bias belonged to Judge Ettinger. He repeatedly belittled the lead plaintiff attorney, Ronald Nessim (a tough and tenacious lawyer who presented a great case) in front of the jury, at one point sarcastically asking him what law school he went to and threatening him with sanctions unnecessarily. He never scolded the defense for its ubiquitous objections. Instead, he sustained them.
Ettinger was called out of retirement to replace the first judge, Elias, who recused herself. He had nothing to lose by going along with the defense plan to remove me unfairly. How can any action be taken against him if he is going back to retirement, anyway?
If it wasn’t going to be me targeted, it would have been another juror. As the foreperson, I was probably their first choice. So they found something about me on Google to send to the judge. The lead defense attorney, Henry Shields, called it “serendipity.”
Whatever you call it, they amazingly put together a 52-page motion for a mistrial to the judge overnight. They use big phrases like “Mr. Hartwell has a deep seated [sic] distrust of and bias against large media corporations.” They never bother to demonstrate this bias. They acknowledge on the one hand that I have written “dozens” of articles but they cherry-pick a tiny percentage of them and blow them out of proportion. They smear me with discussion of articles about the attacks of 9/11 and I can’t help but think the term “conspiracy nut” crossed their minds.
Shields even insinuated in the judge’s chambers that I tried to bias the other jurors against NBC, but failed to show proof. At least two of my fellow jurors have spoken on this subject since the end of the trial and they have both insisted that I was not biased. Supposedly, the judge polled all jurors about my alleged bias but the poll results, which would definitely answer Shields’ concerns, have not been made public to my knowledge.
Last, but not least, when they get around to making a legal argument, the defense compares my attitude to a juror in another case who said of a black plaintiff that “where he came from, they don’t even let a black woman into the courtroom.” I bet they guessed no one would actually read this trash. None dare call it reason.
---
P.S. It is interesting the NBC lawyers would bring up 9/11. To read my recent writings on this topic and on the assassinations of JFK and RFK, Click Here
Prospective Jurors Should Read This Before Reporting (5/11/07) by Dean Hartwell
I have already discussed my reasons for why I did not commit juror misconduct in the recent “Will and Grace” case in the article None Dare Call It Reason. In the case, a defense attorney, probably fearing a loss, presented cherry-picked evidence to the judge to accuse me of bias and to present an ultimatum to the plaintiffs to either settle or face a mistrial. The judge accepted their motion to dismiss me and appeared poised to grant a mistrial before the two parties settled.
What I now write is to warn prospective jurors of how they could find themselves in my situation: made into a scapegoat for someone else’s mistakes. You will do the right thing by showing up for jury duty after receiving your summons because that is our duty as citizens of the United States and of our respective states. But don’t think for one minute that anyone will watch your back.
Plaintiffs and defendants typically have attorneys. They have studied the law at a reputable law school and most know their respective specialty fields quite well. They also know the rules of ethics to the point where they know to zealously protect the interest of their clients.
But you, the juror, do not get any representation. If you want to talk to the judge, you talk through a court-appointed representative. If you need some time off to take care of a dental appointment or something like that, this system works fine. But if you are accused of wrongdoing by one of the attorneys or the judge, forget about anyone speaking for you.
In my case, the charge of misconduct against me was not a simple one. The defense attorney got the judge’s attention and presented a motion highlighting statements I had made two years before on my web site. The judge asked me questions about the statements. He gave me no notice of any kind, or any chance to review the charges, before entering his chambers. I would have been happy to submit a brief to rebut the charges the defense made.
The judge will select the topic, not you. You may want to ask questions but forget it. The judge rules their chambers.
I wanted to ask questions of the defense attorneys after hearing their story. For instance, they claimed they found out I was the foreperson AFTER I submitted the verdict to the judge on April 25, 2007. I found this interesting since the courtroom assistant had told us jurors that the judge reviewed our questions about the deliberations with the attorneys from both sides.
Did the judge only tell the attorneys orally what our questions were? Think about that one. Have you ever heard of an attorney who did NOT insist on reading a document for themselves? If they had indeed read these questions, they would have seen my signature on the bottom of each page as the foreperson. They would thus have deduced that I was the foreperson several days before they claimed to learn this information.
They made another dubious claim. They said they found out about my web site AFTER I turned the verdict in. Do they mean to say that they did not research the prospective jurors during voir dire (January 2007)? All of the attorneys and their jury consultants had our names since they had copies of our questionnaires at voir dire in January and they heard the Judge identify us by last name (the motion to dismiss me shows this clearly).
If the defense did not research me then, they led the court to believe they chose not to conduct research on the jurors before selecting them. If they did research me, they had information about me and held on to it for over three months. The implications are ominous: it could mean they gave false information to the court in their motions.
So, prospective juror – be forewarned. These attorneys know all about you. If the case does not go their way, you could be the target of one of their attacks. You will have nowhere to hide so prepare to fight back by presenting your side to the story.
You can’t avoid someone accusing you of something. After all, the one sure way not to be accused of bias is to never hold an opinion about anything in your life. This is funny. The court system asks jurors to form an opinion (the verdict) after hearing all of the facts!
A Juror Teaches a Judge a Lesson (8/13/07) by Dean Hartwell
In April 2007, Judge
Warren Ettinger in Los Angeles Superior Court dismissed me as a juror
from a case in which I served as foreperson. The judge claimed that I
had concealed a bias against the defendants, NBC and NBC Studios, during
the voir dire questioning.
This decision became the turning point of the entire trial. We jurors
had submitted a verdict to the judge the previous afternoon that favored
the plaintiffs and gave them the opportunity to argue for punitive
damages. The verdict (never read) got thrown out and the two sides
settled for what was likely a lesser amount.
With the importance of my dismissal in mind, one might think the judge
gave the decision serious thought before making it. But, he compromised
his ability to be objective about this subject by letting one of the
sides set the terms of debate.
After we turned in our verdict in the afternoon, the defense, allegedly
learning I was the foreperson, entered my name into Google© and
discovered my web site. There they found one essay in particular that
they would stretch their point about bias on.
The essay, titled "Corporate Media Favors Incumbents," starts out by
defending the corporate media (including NBC) from criticism that they
are influenced by ideology. Later in the essay, I name specific stories
that I thought the corporate media should have covered and others that
they should not have covered.
These parts of my column apparently did not bother NBC, because they
used bold font to stress a subsequent paragraph in which I said that the
corporate media covers "phony" stories sometimes and how they benefit
from reciprocity from the government. It was this paragraph that many in
the media (surprise) ran as an example of my "bias."
After both sides debated the issue before the judge in open court (while
we jurors were kept in sequestration away from the argument), the judge
finally called on the one person who knew the most about the web site
and the essay: me. I went to the chambers and sat before the judge with
representatives of both sides present.
Then the judge let a golden opportunity to hear the most convincing
arguments from both sides slip away. Instead of describing the issue of
bias in the instant case, the definition of bias and its burden of
proof, he quickly confronted me with the "Corporate Media" essay's
bold-faced paragraph.
It put me on the defensive when the defense had made the accusation. In
our legal system, the "moving party" (here, the defense as they wanted a
motion to dismiss me) typically goes first. The judge acted appalled
that I would suggest that the corporate media sometimes covers up
stories embarrassing to the government. At no time did I get the chance
to bring up any of my own issues.
Focusing on one paragraph to the exclusion of all else smacks of bias in
its own right. I would have told the judge that I had written at least
as many essays which made favorable references NBC as did not. I also
would have mentioned that only a small percentage of my 200 essays on
the site mentioned NBC or the corporate media.
The judge moved on and fielded a question from one of the defense
attorneys about the need to poll the jurors as to whether I had "biased"
them. This move was premature as there had been no proof shown of bias.
Bias is defined as: a particular tendency or inclination, esp. one
that prevents unprejudiced consideration of a question; prejudice.
Can one paragraph truly demonstrate this sort of inclination? Maybe if
it were the only statement one ever made on the topic in question. But
even that is a stretch. Here, I wrote other articles demonstrating
different points of view about NBC. Also, the judge never acknowledged
the "Corporate Media" essay was almost two years old.
What's more, I understand through other jurors that the judge asked
questions of them as to whether I had been biased. To my knowledge, no
juror said any such thing about me. In fact, at least three of them have
told the media that I was not at all biased. If bias is what bias does,
where was the bias here when no one thought I acted with bias?
Furthermore, the voir dire questionnaire that I allegedly
withheld information from asked me about my beliefs. If they wanted to
use the word "opinion" on the questionnaire, they would have. An opinion
"lacks certainty," whereas a belief "has conviction." I did not speak
with conviction about NBC because I gave different viewpoints and
because I did not act upon it (like participating in a boycott of NBC or
its parent company, General Electric).
The judge demonstrated his own bias when he ran roughshod through our
"discussion" in the chambers. All he needed to do was to give me notice
of the accusation or at least a chance to state my own case.
There were other facts I could have shown in my own defense. My wife
runs a non-profit corporation (which I disclosed on the questionnaire)
in which she receives the bulk of her corporation's income from other
corporations. I work for a municipal corporation, the City of Glendale.
The judge never specified what type of corporation when he told the
public and the media that my site "is critical of corporations in
general -- and NBC in particular."
If I really were against corporations and NBC, I would promote this
opinion through my web site name and description to attract people who
opposed corporations. I would probably call it "Hartwell’s Watch of the
Corporate Media" and tell search engines why I did not like corporations
or what the problem was with NBC.
Instead, my site name is "Hartwell Perspective" and my search engine
descriptions tell of my "generally liberal perspective of politics" and
similar words. To contemplate that liberals oppose corporations is
absurd – I have pointed out in essays that liberal politicians take
corporate Political Action Committee money.
When I posted the "Corporate Media" essay, people responded, as they
often do to my essays. All who responded to this column talked about
whether the corporate media follows an ideology or not. No one said a
word about my contention that the corporate media withholds information
at the behest of the government. If to be is to be perceived, then it is
clear to me that my essay was not anti-corporation, anti-corporate media
or anti-NBC.
Buried in the 52-page motion that the defense presented to the judge
asking for my dismissal were other essays they apparently did not like.
The judge never mentioned these essays to me and I only found out about
them by going to
http://www.hollywoodreporteresq.com/thresq/photos/NBC_Motion-for-Mistrial.pdf
and downloading the motion. If these other essays, described below,
constituted bias, why didn't the judge show them to me? Usually people
accused of wrongdoing are notified of the specific charges.
In the motion, the defense attorneys state, "Mr. Hartwell's belief that
corporate media companies, including NBC, are linked to the Bush
Administration is also troublesome because he has written articles
suggesting that, among other things, the Bush Administration had prior
knowledge of or was involved in the terrorist attacks that occurred on
9/11."
They don’t acknowledge that I never accused NBC of withholding
information about 9/11. In fact, they fail to note that one of their
exhibits shows that I cited NBC's television show "Meet the Press" as a
source of information. No writer I know of would ever cite a source they
had a bias against.
My essays form the exhibits for the motion, along with a photocopy of
one of my pages that has a picture of me in order to demonstrate
identity. An exhibit about my essay "Try Cheney in the Media," analyzes
how strict with evidentiary requirements the corporate media should be
about Cheney’s alleged wrongdoings.
Though I am critical of how the corporate media handled voting
irregularities in the presidential election of 2004 and suggest they
buried the story out of deference to the incumbent President Bush, I
also commend the corporate media for uncovering previous scandals, like
Watergate and the Iran-Contra Scandal.
In the exhibit for "War Games on 9/11," I cite the aforementioned "Meet
the Press" show of September 16, 2001, in which Cheney revealed
interesting information to host Tim Russert. I also note that another
member of the corporate media, Cable News Network, had relevant things
to say about the war games on that date.
And the last exhibit, for "How to Silence a 9/11 Conspiracy Theorist,"
contains no mention of NBC at all. I simply ask several questions about
the official theory about 9/11 and invite answers. I go as far as to say
that if anyone can give me good answers to all of the questions, I would
stop calling 9/11 an "inside job." In every exhibit, they "cherry pick"
anything that they believe shows bias and ignore everything else.
In the end, the defense attorneys come across as the biased ones. They
must have ignored American Bar Association Guidelines which demand that
attorneys address the court with candor (the whole story). Had they
looked at the whole story first before making a decision on a motion,
they would have saved everyone a lot of trouble. Instead, they looked
for bias in all of the wrong places.
The author served in the Kohan v. NBC trial, also known as the
"Will and Grace" case. His web site,
www.deanhartwell.com contains many essays on a variety of political
issues and contains more accounts of the trial. Hartwell received a law
degree from Glendale University College of Law in 2004. He has asked
questions raised in this essay of two of the defense attorneys and the
judge, but has not received any reply.