Petrilli v Silberman: Day 1

Right now, I’m not comfortable that
the facts are so undisputed, that I feel comfortable
making a ruling as a matter of law.

---Judge James Ishmael
rejecting a summary judgment during a pretrial hearing

Before today's trial began, Fayette County Circuit Judge James Ishmael addressed plaintiff's attroneys J Dale Golden and Melissa Thompson, and defense attorney John McNeill, in Petrilli v Silberman outlining how he planned to proceed in court.

“I am making no promises to anybody, other than… I’m going to try my dead-level best to listen to this stuff fairly and objectively. And if it’s a factual question, obviously, it goes to the jury. If there’s no dispute of the facts, and…I can make a ruling as a matter of law, then I’ll do the very best I can. That’s all I can promise you… Let’s go to trial. Let everybody put on their best story, truthfully, in good faith, professionally…. I will take a hard look at the evidence as it comes in…”

He repeated those sentiments in court this morning while KSN&C followed along.

8:30am: Judge James Ishmael and attorney discuss procedures for voir dire, challenges and how to handle jurors who are past or present board employees; each side allowed 4 juror strikes.

Attorneys discussed the legal issue of whether or not the BTWA council selected former Principal Peggy Petrilli or if it was Fayette County Superintendent Stu Silberman.

McNeill: argued that the superintendent sends a list of candidates to the Council and the council selects. “When it comes to selecting, the superintendent has no input on that.”

Rather than refuting, Golden argued a different question of law relative to the claim of reverse racial discrimination in Petrilli’s situation saying the legal question was, “[was she] replaced by a person of the other race?”

Ishmael admonished the attorneys. “I expect everybody to be on their best behavior…”

8:54: Jury pool enters, sworn in

9:05: Judge addresses potential jury pool; calls 22 from the pool for voir dire

9:13: Ishmael: Are any of you all employees of the Fayette Co BOE at this time? Have any of you ever been employed? How about immediate family? Any of them employed by the board?

(Several had connections: a bus driver, teacher@ Deep Springs, teacher @ Beaumont, former student teacher from HC, Marching band TCHS, wife’s a teacher, sister was former student teacher, husband is retired bus driver, sister is teacher at Morton...)

"The board and Silberman are a party in this matter… Do you think that if you voted against the board, do you believe our wife’s job would be in jeopardy?" Ishmael asked. "Would that have any effect on your consideration?"

9:24 The first of several side bars with attorneys

9:43: Four jurors with FCPS connections were excused and replaced. (Of the new jurors, one had a sister who was a special education teacher at several schools now retired. Another has a mother who is a special education teacher at Garden Springs)

9:48: Ishmael discussed the length of the trial: "We are now anticipating this will take six days, Wednesday & Thursday of this week, and all four days (M-Th) next week for trial. Can you be available? ...Were any of you excused officially before now for any of these dates?" (One juror excused; Another juror excused for medical reasons.)

10:00: Five more excused for medical, scheduling and other unknown reasons.

Two new jurors were called. One, a Lafayette teacher was excused.

Ishmael questioned the jury pool on issues related to their health, hearing, language…

“We’re going to be conducting this trial on good ol’ Kentucky English... Any language concerns?”

He outlined the civil case, the time period and that Petrilli had been principal at Booker T Washington Academy and following her departure is now seeking damages.

10:22: Ishmael asked, “Anybody know anything, heard about, or read about anything about the case…names, circumstances, date, anything?"

A half dozen jurors approached the bench individually to explain their background knowledge and one was excused.

Prior to calling for a 15-minute break, the judge gave the jury a strong admonishment against discussing or researching the case. “Don’t look at the news accounts…TV…don’t listen to radio…do not read anything about it in the morning paper…don’t look it up on the internet. It is very important.”

During the break I chatted with Jim Warren of the Herald-Leader.

11:17: When court resumed a juror with a 5-month-old child was excused.

The judge introduced Petrilli and her attorneys, followed by Silberman and his attorneys. “Let us know if you have knowledge of any of these folks,” Ishmael said.

He continued questioning, “Do you pledge to this court …[that] you will base your verdict on the evidence and instructions of the court? …We‘re not gong to Google. Everybody pledge not to do that?”

11:28: He further asked about proof in the case, and the potential for awarding damages. “Anybody uncomfortable with anything I asked or anything I didn’t ask?”

A juror was excused – for being the wife of one of the attorneys.

At the end of the morning session Dale Golden began his questioning of the jury.
“How many people believe there’s too much litigation today?”

He questioned about service on the PTA or school council.

Golden’s introductory comments to a question drew an objection form McNeill: “Is there anybody that believes that there is no such thing as reverse discrimination?” Golden asked.

“Anyone here believe that all resignations are voluntary? ...Anybody believe its’ wrong to file a lawsuit? ...“Is there anybody who would have a problem awarding damages for mental anguish? …punitive damages?”

“Does everyone here agree that the law on discrimination should be applied equally?”

That drew another objection from McNeill and Judge Ishmael decided to break for lunch.

Lunch Break:

Before resuming Judge Ishmael called Richard Day of KSN&C to the bench to outline the allowable procedures during the trial in the courtroom.

1:25pm: Golden quickly concludes voir dire.

Side bar. A juror was struck and replaced.

1:33: McNeill begins voir dire. "Have you or... any member of your family ever sued someone? Have any of you ever read any education blogs that have covered this issue? Does anybody feel like the Board of Education is entitled to less [because they are a government entity]? If yo find the case is not proved...even if you have sympathy [for the plaintiff]...will you decide based on the facts?"

McNeill asked potential jurors if they had philosophical problems with the concepts of soverign immunity, or that a superintendent might enjoy individual immunity.

Then McNeill took a little poll asking the panel their opinion of Silberman by a show of hands. Of the 22 potential jurors voting, my best count was...

Silberman is a good superintendent = 7

Silberman is average = 3

Silberman is poor = 0

Judge Ishmael then asked how many had no opinion = 9

McNeill asked how many jurors had never had children in FCPS = 10ish

"Have any of you had a bad experience...[in FCPS] that might influence your decision in this case?"

Two jurors cited problems, both related to Bryan Station High School.

Have any of you ever "had to attend a board of education meeting because you advocated for or against a policy change? ...member of the PTA? ...Booster club? ...believe parents have a right to talk to the principal, teachers [about problems]?

1:55: One juror reacted when McNeill asked, "Does anybody feel like they have been the victim of racial discrimination? Following a side bar with the juror, he was struck and replaced witha teacher at Liberty Elementary, who was promptly excused and replaced.

One juror drew laughter when she responded to a question by saying, "I was brought in to fix the books at Winburn. ...and then realized what she had said.

2:00: McNeill asked his racial discrimination question again.

"Will you wait until you hear all of the evidence [before rendering a judgment]?" do you have a problem with the concept of retailiation...whistleblower?

2:06: "Any problem finding either way...based on the judges instructions...if the plaintiff does not prove her case? Any problem awarding nothing...?"

Side Bar.

2:17: A juror was excused and replaced by an after school worker at Veteran's Park, who was in turn excused and replaced.

2:24: Side bar.

Judge Ishmael called for a 15-minute break saying a legal issue had arisen which needed to be researched. "I'm embarassed about this but I assure you that it is necessary."

3:17: Break

3:51: Court back in session. Side bar with attorneys.

4:09: Ishmael: This is a very unusual case...highly unusual circumstances...[I'm going to] try my very very best to do this right."

We will call our final jury and call it a day.

Tomorrow the trial will move to Courtroom F, 3rd Floor and begin at 8:45 am - expects to end around 4:30-5:00 pm.

A jury of 14 (two alternates) was selected by lot. Of the 12 who finally render a decision, 9 must agree on the verdict.

The jury consists of 3 blacks, 11 whites; 5 men, 9 women.

4:20: Ishmael repeated his admonishment to the jurors not to talk about or research the case and made a few other procedural remarks.

Judge Ishmael informed counsel that he had given permission for Richard Day of Kentucky School News & Commentary and the Herald-leader photographer to take one photo of each witness, and he has allowed one pool TV camera, but will not permit audio recording of the proceedings.

4:32: Adjourned