The jury's first note arrives on the morning of February 9, just four days after the start of deliberations: "We are at a point that we've decided we cannot come to a unanimous decision. Do you have any advice for us?"
The message puts the fear of God in Elisa Barnes; after four and a half years of steering her case against gun manufacturers through the courts, a hung jury would be as bad as a loss. But Judge Jack Weinstein, the mainstay of Brooklyn's Eastern District, isn't about to accept a deadlock.
"Nobody ever promised you an easy life," he tells them, a hint of Bensonhurst in his voice. "I certainly didn't. I told you it would be difficult. All right, retire -- your lunch will be served as usual; your rations will not be reduced."
That afternoon, another note arrives: "We are very upset. We are starting to fight!! We cannot reach a decision. We are emotionally drained, and some of us feel physically ill. Please, please give us more direction!" Weinstein tries another tack. "I sympathize and empathize with you," he says, "but you can't walk away from this. I can let you go for the evening if you like. Or I can have the marshals take you for a walk. I can send you over to the restaurant to have a cup of coffee or a bun or something. . . . Everyone has invested too much time in this case to allow you to throw up your hands prematurely."
One juror protests: "I want to go home."
"You want to go home?" the judge says.
"Okay, go home if you would like. Be here at nine o'clock tomorrow. Look forward to what you're going to eat, and have a pleasant evening. Don't discuss the case with anyone."
Two days and four notes later, the jury delivers the first verdict in history to find a gun manufacturer liable for the way its products are sold. Even if it is reversed on appeal, Hamilton v. Accu-Tek -- which held gun-makers accountable for the black market in guns used in seven local shootings -- promises to trigger a host of class-action claims against the firearms industry. Gun-control activists believe those lawsuits will force the industry to regulate its products in ways it has spent millions trying to avoid.
But gun-makers say they aren't about to cut any deals. When their lawyers file an appeal, possibly as soon as next month, they'll argue that Elisa Barnes never linked a single one of their clients' guns to the crimes that prompted this case. Why should the industry take the rap, they'll argue, when some criminal pulled the trigger? And they won't stop with Barnes. The second time around, the case will become as much about Judge Weinstein as it is about loose handguns.
Already the gun-makers' lawyers have painted Weinstein as a liberal courtroom legend who engineered the case from start to finish. In their appeal, they'll show how he was handpicked by Barnes to try the case, based on his reputation as the quintessential activist jurist. They'll argue that he legislated from the bench, tailoring Barnes's arguments to fit his own theories about negligence cases. They'll say he egged jurors on to compromise on a tainted split verdict despite repeated signs that they were deadlocked.
They'll say that with Jack Weinstein on the bench, the game was rigged.
"I'm disappointed in the judge, because this is his theory," says American Arms counsel Daniel Hughes. "If you read the transcripts, he acknowledges that this is a laboratory for an intellectual exercise."
But the judge is unfazed.
"If the Court of Appeals disagrees with me or somebody else disagrees with my rulings, it doesn't bother me," Weinstein says in an interview shortly after the trial's end. "After almost 33 years, I don't feel I have to justify myself to anybody but myself."