Courtroom Drama: Pao-Kleiner Juror Changed His Vote Mid-Verdict

Ellen Pao speaks to the media after losing in her gender-discrimination lawsuit against Kleiner Perkins Caufield and Byers in San Francisco.

The sex-discrimination case between Ellen Pao and her former employer, Kleiner Perkins Caufield & Byers, took several emotional turns in court but perhaps none more dramatic than during the verdict.

After three days of deliberations, an adrenalized courtroom in San Francisco sat in total silence Friday afternoon as Judge Harold Kahn polled the jury one by one on their verdicts for four claims. Judge Kahn is known for being meticulous, and a jocular stickler for details. A packed court thought it was hearing an elaborate end to a shutout against Pao, as she lost every count of her gender-discrimination and retaliation case.

Many of the 50 press members in attendance quickly tweeted a Kleiner victory and emailed or posted their stories. News headlines circulated touting a clean sweep by the venture-capital firm.

But the judge stumbled across something. There was a problem with the voting of the last charge, that Kleiner Perkins retaliated by firing Pao in 2012 after she spoke out about sexism she says she encountered at the storied venture capital firm.

So Judge Kahn asked the jurors again to read their votes. Eight jurors voted that Pao was not retaliated against, and the decision requires a vote of 9-3.

Confusion filled the courtroom. What does that mean? Journalists whispered to each other. Pao, who had looked defeated, turned to her attorneys. Kleiner Perkins’ lawyers, who were ready to celebrate, looked quizzically at each other.

“I am unable to record the verdict,” the judge said. Then Kahn asked the jury, now looking sheepish, to resume deliberations. Clamor filled the courtroom. The judge ordered everyone out. Pao, her attorneys and her mother disappeared.

The stunned press in attendance — nicknamed the “Paoparazzi” — asked each other for direction. Editors were emailed, told that the jury had clumsily miscounted. Stories had to be corrected. And then Twitter lit up with jokes about the jurors’ incompetence at math.

An hour passed while jurors deliberated. Formidable Kleiner attorney Lynne Hermle made silly faces at the press through the window in the courtroom door.

Later the jury came back and voted 9-3 on the final count, that Kleiner had not retaliated against Pao.

But the true story came out as the court began emptying. One of the jurors, Steve Sammut, said the jury didn’t miscount. He says another juror actually changed his vote from no to yes while the judge was polling the jury.

“We thought we were set,” Mr. Sammut said. “One of the jurors changed their mind. We were all caught off guard.”