ST. PAUL, Minn. (AP) — Claiming Minnesota’s suit against the tobacco industry has turned into a “show trial,” industry attorneys on Wednesday asked the judge hearing the case to remove himself because he is biased.
“The Court has sent a clear message to the jury that the Court thinks the defendants should lose. A fair trial is an impossibility in such a setting,” the defendants said in a memorandum supporting their motion.
If Ramsey County District Judge Kenneth Fitzpatrick does not remove himself, the defendants will appeal further, said Peter Sipkins, an attorney for Philip Morris, one of 11 defendants in the case. If the judge is not replaced, the defendants asked that a mistrial be declared.
Michael Ciresi, lead attorney for the state, called the motion “an act of desperation by desperate people who have seen their 40-year wall of deceit come crumbling down.”
Ciresi said the plaintiffs will file a response. “The court will deal with it and we’ll go on,” he said.
The state and Blue Cross and Blue Shield of Minnesota are suing the tobacco industry to recover $1.77 billion they claim they’ve spent treating smoking-related illnesses. They also are seeking punitive damages.
The defendants, in their 35-page memorandum, outlined what they view as a pattern of biased comments and rulings by Fitzpatrick going back to pretrial hearings.
“The court, in this case, has failed to ensure the appearance of impartiality. It has shown bias in its orders, in jury selection and during trial itself in the presence of the jury,” the defendants said.
“Rather than a fair trial, this case has turned into a show trial,'” they added.
The memorandum also cited the judge’s reference to industry documents as “some of the darkest bowels of the tobacco industry.”
Fitzpatrick also quoted from privileged documents and released to the public excerpts from protected documents, they said, calling such action unprecedented in the history of the Minnesota state court system.
On Saturday, when Fitzpatrick ordered the release of 39,000 documents for which the industry had claimed attorney-client privilege, he quoted from a study on smoking behaviors of children which he said had been misclassified.
The document, which discussed why youngsters as young as 5 years old start smoking, was not among those released to the plaintiffs.
The defense also noted the judge refused to strike potential jurors who admitted bias against the tobacco industry, forcing defendants to use their peremptory strikes to remove them.
“Time after time, prospective jurors were seated who acknowledged being biased against defendants but promised to try’ to be fair when questioned by the court or plaintiffs,” the defendants said.
In addition, the judge has “forced the defendants to act out — for the jury — the conspiracy’ that plaintiffs alleged” by allowing only one lawyer on behalf of all 11 defendants to cross-examine each of the plaintiffs’ witnesses.
“The court’s order,” they added, “requires defendants to act in a conspiratorial’ fashion in front of the jury, every single day of this trial.”
The defendants also said the judge improperly ordered that witnesses must read historical documents selected by the plaintiffs before testifying, and implied in front of the jury that witnesses had a duty to read the documents before taking the stand.