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California and the West

Convictions Thrown Out for Symington

Court: Appellate judges rule that juror in bank fraud trial of ex-Arizona governor was improperly dismissed amid deliberations.

June 23, 1999|JULIE CART | TIMES STAFF WRITER

DENVER — A federal appeals court overturned the bank fraud convictions of former Arizona Gov. Fife Symington on Tuesday in a ruling that upheld the sanctity of juror deliberations and may greatly restrict judges' ability to dismiss jurors.

The ruling from the 9th U.S. Circuit Court of Appeals in San Francisco said the trial judge in the Symington case acted improperly in dismissing a juror who had been quarreling with other panelists. The 2-1 ruling held that there was a "reasonable possibility" that the juror was removed because she disagreed with other jurors about Symington's guilt rather than because she failed to take part in deliberations, as her colleagues had charged.

In Phoenix, a jubilant Symington told reporters: "I've always been innocent, it was just a matter of time before we would prevail."

The 53-year-old former governor has remained free during the appeal of his 1997 conviction on six counts of bank and wire fraud. He resigned from office while serving his second term as governor.

Assistant U.S. Atty. David Schindler, who prosecuted the case, expressed disappointment Tuesday with the opinion, saying that the appeals court had second-guessed the trial judge. He said his office was considering whether to retry Symington.

Symington's case was being closely watched by legal experts as an indicator of what to do about uncooperative jurors--now a hot issue for appeals. The 9th Circuit's opinion made it clear that mere stubbornness was not cause to excuse a juror.

The court said that a juror--even a difficult one--could not be dismissed for reasons relating to his or her views.

"While there may have been some reason to doubt [the juror's] abilities . . . there was also considerable evidence to suggest that the other jurors' frustrations with her derived primarily from the fact that she held a position opposite to theirs on the merits of the case," said Tuesday's opinion, written by Judge Betty Fletcher.

The court stressed the sanctity of jury deliberations, noting that when the trial judge questioned the jurors, he properly did not delve into their deliberations. Because of his limited insight into the goings-on in the jury room, the appeals court concluded, the judge had insufficient evidence to dismiss the juror.

Legal observers say that the decision may result in a reluctance by judges to intervene in deliberations and could lead to more mistrials and hung juries.

"In a sense," said George B. Newhouse Jr., a former U.S. attorney who has followed the case, "the 9th Circuit decision makes it almost impossible to remove a juror unless he's certifiably crazy or locks himself in a bathroom and is unable to deliberate."

When the Symington panel began its deliberations, according to fellow jurors, Mary Jane Cotey promptly told her colleagues that she had an opinion, even before they had reviewed the charges. The jury three days later sent a note to the judge, and he sent a reply urging all jurors to participate in deliberations.

Cotey, 74, continued to prove difficult, other jurors said. She reportedly refused to deliberate, failed to focus on the issues and appeared confused. Another note was sent to the judge. Six days into deliberations, U.S. District Judge Robert Strand dismissed Cotey and replaced her with an alternate.

Cotey later told reporters that she would have voted to acquit Symington and said other jurors were bent on convicting him.

A women who answered the telephone at Cotey's home in Phoenix on Tuesday said she was not there.

According to Loyola University law professor Laurie Levenson, juror dismissal is the legal hot potato of the moment, so much so that some defense attorneys select one "loner" whose recalcitrance may lead to that juror being excused.

"This decision says that being a little nutty is OK if there's any indication that your nuttiness is related to your opinion about the case," Levenson said. "It sets the standard, but I'm sure there will be great disagreement as to how to apply it."

Legal experts say that the Symington case has a good chance because it was overturned on a procedural matter, and not its merits.

"Make no mistake, nothing in this opinion suggests Mr. Symington didn't make false statements to lenders," Schindler said. "Twelve people have already concluded that Symington has already made false statements and there's no reason to believe 12 others would not reach the same conclusion."

Symington, a conservative Republican, swept into office in 1991 with the promise that he would run the Arizona economy like a business. In fact, reports of his business acumen proved to be as dubious as his financial claims.

A well-connected developer in Phoenix's yo-yoing real estate market, Symington was brought to trial after a five-year investigation by the U.S. attorney's office in Los Angeles.

At the start of his 13-week trial, Symington was portrayed as a liar who abused his office and fabricated versions of his financial condition depending on whether he was seeking loans or investors. By the end of the trial, the great-grandson of steel baron Henry Clay Frick had filed for bankruptcy.

In February 1998, Symington was sentenced to 30 months at a federal prison camp at Nellis Air Force Base in Nevada. Strand ordered Symington to pay a $60,000 fine, complete 500 hours of community service and, upon his release, be placed on five years' probation.

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