03.19.12

A Hung Jury for Nicollette Sheridan

Maria Elena Fernandez offers the juicy Desperate Housewives’ trial’s Top 10 moments now that it’s been declared a mistrial—from Sheridan reenacting the “hit” to reluctant witnesses.

In the end, to the people who most counted, it didn’t matter at all whether actress Nicollette Sheridan had been slapped, hit, or walloped. After 11 hours of deliberation, the dividing issue was witness credibility, as the jury of nine women and three men remained unable to reach a verdict.

Nearly two years after Sheridan filed her lawsuit against Desperate Housewives creator Marc Cherry and ABC Studios, and 16 days into a civil trial in Los Angeles, the case ended with the most frustrating of cliffhangers. Deadlocked from their first vote, the jury told Los Angeles Superior Court Elizabeth Allen White Monday there was nothing additional she could provide that could alter their minds. Divided 8 to 4, in favor of Sheridan, they asked to be released. Nine votes were needed for Sheridan to prevail.

Sheridan filed the suit against Cherry and ABC Studios on April 5, 2010, for firing her after she complained that Cherry had hit her on the side of the head. The judge threw out the battery claim against Cherry earlier last week, after both sides presented all of their evidence. The decision effectively removed him as a defendant, but the jury still had to weigh whether he hit Sheridan out of anger or just as part of a rehearsal, as he claimed, in deciding whether ABC Studios then, in turn, fired her out of retaliation.

But, really, why Cherry hit her or how factored little in their debates, said juror Beverly Crosby, who spoke with reporters outside the courthouse after the mistrial was declared.

“The evidence shows she was struck, and whether it was a hit, slap, or wallop, that really doesn’t matter,” Crosby said. “I looked at the fact that she was touched without permission. And whatever the word for it is—hit, slap, or wallop—didn’t really matter.”

Instead, the jury spent more time debating the credibility of witnesses and weighing them against one another, Crosby said.

“I don’t think they were scripted,” said juror Johnny Huynh, referring to Sheridan’s lawyer Mark Baute’s claims that ABC Studios’ witnesses had synchronized their stories. “But it was more like, their story just didn’t match up for me. They were less credible, their demeanor and things like that.”

Crosby said she wouldn’t go so far as to accuse ABC Studios of a “cover-up” but said she didn’t think officials handled the incident between Sheridan and Cherry correctly.

“Retaliation can be very subtle,” Crosby added. “It can be hard to prove.”

The four jurors who saw things the way defense attorney Adam Levin presented them chose not to speak to the media. Levin said he’s ready to retry the case, adding that a new jury will hear a “narrower” version of it since Cherry is no longer a defendant—he said he is confident he would prevail in a new trial.

Both sides said Monday they have no interest in pursuing a settlement. “We’re not looking for or expecting any settlement offer,” said Baute.

He expects the case will be retried and might have felt disappointed if it weren’t for what he deemed Sheridan’s positive outlook. Sheridan, who had wept twice during the trial, remained calm and collected during Monday’s proceedings, only nodding her head in appreciation as the judge thanked the jury for their service. She declined to speak to reporters.

“I’m so impressed with Nicollette,” Baute said. “For that reason, it really isn’t disappointing... eight jurors looked at the evidence and said, ‘I’m not buying what you’re selling.’ We’re ready to go.”

The trial’s top 10 moments:

1) We knew that Desperate Housewives is a primetime soap and we knew Nicollette Sheridan can emote. But when Sheridan began quietly weeping during opening statements, we wondered how on earth she would make it through this lengthy process. Then, she “stunned” even her lawyer, Mark Baute. When the judge sent the jury out after opening statements, Sheridan threw herself in his arms. “She was not acting,” Baute assured the media later. The next time we saw her get choked up was on the witness stand as she read a tender note that executive producer George Perkins had written to her about being impressed with the classy way she handled her exit from the show. After Cherry finished testifying, however, there were no tears. Just “Bastard!” which she mouthed in his direction.

2) It certainly would not be any fun to be on the receiving end of a slap, wallop, hit, punch, smack, or bop. All of these nouns came out of the mouths of lawyers or witnesses during the trial. But there was nothing like seeing Nicollette Sheridan slap/wallop/hit/punch/smack/bop her lawyer, Patrick Maloney, not just once—but twice. The first time, she demonstrated how Cherry had allegedly struck her with his open right hand across the left side of her face and head. But Maloney didn’t think it carried enough weight. He gave her permission later in the trial to slap/wallop/hit/punch/smack/bop him again and the result was fantastic. If only we had video. As Maloney noted later, his head jerked back. Oh yes; yes, it did.

3) Who said cross-examination is ever easy? As Cherry’s lawyer, Adam Levin, hammered Sheridan on whether Cherry “hit” her or “slapped” her—because she had once signed a document that described it as the latter—Sheridan had enough. Her voice grew a bit louder, her attitude more forceful, and she said very plainly: “He hit me and he hit me hard.” As the back and forth went on, at one point, Sheridan looked at the judge and said, “Sorry, this is just ridiculous to me.” Judge Elizabeth Allen White advised her to calm down and Sheridan started exhaling. It worked. Levin didn’t rouse her again.

4) Words do matter, at least, to Cherry’s lawyer, Adam Levin. Was it a hit or a slap? Was it a pinch or a tickle? These were two of the issues that Levin and Sheridan tussled with round and round. You already know what the first one was about. The second referred to the scene Sheridan was rehearsing when she says Cherry became angry with her and hit her. It involved hitting her husband (played by Neal McDonough) with a magazine. But Levin noticed Sheridan added something else, some sort of contact with McDonough’s back that is impossible for viewers to decipher. Levin wanted to know whether she pinched McDonough or tickled him. He clearly wanted the answer to be “pinch.” But she went the “tickle” route. It is very probable that no one on the jury cared at all.

5) Marc Cherry denies he hit Sheridan the way she describes. He testified he “tapped” her on the head to show her the way he wanted her to playfully do the same to McDonough in the scene. But this just is not as interesting as the other tidbit that emerged during Cherry’s testimony. The man who created Desperate Housewives is a mind-reader. Twice, he was able to tell the jury what Sheridan was thinking after the hit or tap (you be the judge). He testified that “She got a look on her face, she paused for two seconds, it was odd. It was like she was making a decision and then she started yelling, ‘You hit me! You can’t hit me!’” Then when he went to Sheridan’s trailer to apologize, Cherry said she asked him, “What were you thinking?” and he explained he was giving her direction and, “She had a look on her face where she processed this and seemed to understand.”

6) Judge Elizabeth Allen White has a very calm and warm manner. And Her Honor can crack some jokes, too! One day, while he was on the stand, Cherry asked the lawyers for water. As Sheridan’s lawyer, Mark Baute, searched for a bottle, Cherry said to give him the one he had already opened because “we’re on a budget.” Baute sarcastically joked about Cherry being on a budget, and Cherry replied: “Oh, I meant the court.” The judge deadpanned: “We only give you water if you’re choking. We wouldn’t want to kill you off.”

7) It was impossible not to feel sympathy for actor James Denton—the only performer to take the stand in the trial. Expressing admiration and affection for both Sheridan and Cherry, it was clear he wanted to be anywhere else but inside that courtroom. As if this weren’t bad enough, the next witness, George Perkins, spoiled Denton’s biggest moment on Desperate Housewives minutes after he left. His character, Mike Delfino, was dying in the next episode of the show—a very well-kept secret until Perkins blabbed. In his closing, Mark Baute called all of this great “theater,” a moment orchestrated by the defense to show that other big-part actors were being killed off Wisteria Lane. We will try to forgive Perkins for his big spoiler since he wrote that nice note to Sheridan but, you know, it’s hard.

8) The day before closing arguments, Sheridan’s lawyers arrived with a bombshell. An employee of Desperate Housewives had left a voicemail for attorney Mark Baute telling him about an email he remembered receiving in 2010 warning all employees that an IT staffer was going to come help them wipe their hard-drives clean of anything relating to the firing of Nicollette Sheridan. In dramatic fashion, Baute played the voicemail in court (outside the presence of the jury), passed out transcripts and recordings of the call to the press, and asked the judge to order the reluctant witness in. Cherry’s lawyer, Adam Levin, fought hard against it, calling it a last-ditch effort to save their case. When the judge agreed with Baute, the media was elated.

9) How badly did Michael Reinhart, a.k.a. Mystery Caller, not want to testify? Soon after leaving the message for Mark Baute, he disconnected his cellphone. Then, when Baute tracked him down at home and they spoke by telephone, Reinhart hung up, packed a bag, and spent the night somewhere else. But the judge has a wide reach and Reinhart did show up, with his own attorney in tow. Reinhart testified he deleted the email because it made him uncomfortable and had tried to forget about it. But after he learned the trial was ending, he was losing sleep over what it could mean. If Reinhart managed to do anything, he outdid actor James Denton in the uncomfortable witness category.

10) In a move that surprised everyone—mostly because of how quickly and matter-of-factly she delivered the news right before lunch on Tuesday—Judge Elizabeth Allen White threw out the battery claim against Marc Cherry, removing him as a defendant in the lawsuit.  Of course, Cherry was “thrilled,” and Sheridan’s lawyers tried to spin it, saying it was a technicality that was better for the jury to have only the wrongful termination claim than to feel like they could split their decision between one or the other. In the end, that did not turn out to be the case for Sheridan.