Although his skills were evident last week, legal experts say the media firestorm Dowd stoked in the aftermath of Mary Jane Cotey's dismissal from the Symington jury probably won't result in a mistrial or provide much fodder for an appeal.
Based on Cotey's public statements and in-chamber statements of the other jurors, it appears the remaining 11 are poised to convict Symington. If the alternate who replaced Cotey agrees with the rest of the jury, Symington's reign as governor is nearly over.
A verdict appears imminent.
Meanwhile, New Times has learned that Cotey, 74, put a false statement on the sworn jury questionnaire she completed prior to being chosen for the jury. And her comments to New Times and other news organizations suggest that she might have been reading press accounts of trial proceedings.
Cotey was removed from the jury August 19 by U.S. District Court Judge Roger B. Strand after a three-hour, closed-door hearing during which he questioned Cotey and the other jurors.
The judge, who bent over backward to be fair to Symington throughout 12 weeks of trial testimony, ruled there were sufficient legal reasons to excuse Cotey.
"It is a matter of the most serious consequence to discharge a juror. However, the Court will do so finding that Juror 161 [Cotey] is either unwilling or unable to deliberate with her colleagues," Strand ruled.
Strand apparently was impressed that testimony from Cotey and other jurors raised serious doubt about Cotey's mental stability.
"Virtually without exception, the other jurors reported that she was unable to follow the discussions, was apparently having an inability to comprehend the topic then under discussion, was not participating in the discussion process, was lacking in concentration and awareness . . . [and] would raise matters that by their subject matter appeared to not relate to the topic under discussion," Strand told Symington's defense lawyers and prosecutors.
After the jurors were interviewed individually in Strand's chambers and it began to appear that Cotey was the sole juror who favored an acquittal, Dowd protested her removal.
However, once it was clear that Strand was adamant about removing her, Dowd argued, over assistant prosecutor George Cardona's objections, that Cotey should be allowed to discuss the case with the press.
"She's free to do what she wants to do," Dowd told Strand, who agreed.
Cotey was dismissed about 5 p.m. on August 19. At the time, she was known only by her juror number, 161. Cotey refused to comment to the press at the courthouse and was driven home by another juror.
Despite her anonymity, Mark Flatten of Tribune Newspapers was inside Cotey's home later that evening, interviewing the former juror. Flatten won't say how he learned Cotey's identity--other than to say he "received a tip" and that he has "better sources."
Those sources are likely in Symington's camp. Flatten has been close to Dowd and Symington for years. He consistently downplays Symington's legal troubles and his coverage of the trial has been anemic at best.
Cotey's identity had been available only to the attorneys in the case and, presumably, Symington aides who assisted defense lawyers during the jury-selection process.
Because testimony from that day's hearing wouldn't be unsealed until the next day, Flatten interviewed Cotey without knowing why she'd been removed. Apparently, Cotey never mentioned, or Flatten did not report, that the other jurors had all agreed she was incapable of deliberating.
The next morning, August 20, the Tribune ran a Page 1 story under the headline: "Ousted juror says she was 'obstruction.'" The story states Cotey said she was removed from the panel against her will because she refused to buckle to the demands of fellow jurors.
The story triggered a barrage of television and newspaper reports, including an Arizona Republic story in which Cotey claims she was forced off the jury after "being railroaded to vote guilty on all counts."
The frenzy fueled Dowd's efforts to end the trial before a verdict was reached. He immediately seized the Tribune and Republic stories and submitted a motion on August 20 asking to interview Cotey so he could determine whether there were grounds for a mistrial. Strand had not granted the motion as of August 26.
Dowd would use more media reports, including excerpts from radio interviews of Cotey, in a subsequent motion seeking a mistrial.
As long as the hearing transcript remained sealed, many media outlets continued to focus on Cotey's claim that she was removed because she supported Symington.
Strand, at the request of media attorneys, finally released the transcripts of the crucial hearing on the afternoon of August 20.
The transcripts contained Cotey's fellow jurors' statements about why they'd concluded that she was incapable of continuing as a juror.
In a response to a question posed by Dowd, the jury foreman said that Cotey frequently could not recall what was being voted on. "As we progressed, all of us started to notice these statements coming that made no sense," the foreman said.
That contention was supported by the other 10 jurors, all of whom stated that Cotey appeared confused.
Strand had been notified by a note from the jury foreman on August 19 that the jury had a serious problem with one juror. The foreman told the judge that all jurors, including Cotey, were aware of the note's contents.
The foreman later told Strand that Cotey's colleagues on the jury were unanimous in their desire that the note be sent. The note stated, "We, the jury, respectfully request that this information be kept confidential.
"We have earnestly attempted to follow your last directive to continue with our deliberations. However, the majority of the jurors sincerely feel that the juror in question cannot properly participate in the discussion with us.
"Reasons: Inability to maintain a focus on the subject of discussion.
"Inability to recall topics under discussion.
"Refusal to discuss views with other jurors.
"All information must be repeated two to three times to be understood, discussed, or voted on. Immediately following a vote, the juror cannot tell us what was voted.
"We question the ability to comprehend and focus on the information discussed. . . ."
Jurors also said Cotey had made up her mind on the case prior to evidence on all 21 criminal counts being reviewed.
After learning Cotey's identity on August 20, New Times compared public records against the answers Cotey gave on her sworn juror questionnaire last May.
Within minutes, New Times found that Cotey had submitted a false statement on the questionnaire.
Cotey stated on her questionnaire that she had never been "involved in a civil lawsuit." However, Maricopa County Superior Court records show Cotey was a litigant in a 1987 civil suit.
In a rambling August 20 interview, Cotey told New Times she didn't remember being involved in civil litigation, although she remembers a traffic accident that appears to be related to the lawsuit.
"It's not in my memory. I would remember something like that," Cotey said.
Assistant defense attorney Terry Lynam downplays the discrepancy. "Who knows how she interpreted that question?" Lynam said.
But the question was straightforward: "Have you or a family member or close friend ever been involved in a civil lawsuit other than a domestic relations proceeding or a legal proceeding involving the probate or settlement of a family member's estate?"
New Times posted a lengthy story detailing Cotey's false statement along with the supporting documents on its Web site on the evening of August 20. Copies of the story and supporting public records were also made available in the federal court press room the next day.
Nevertheless, Cotey's false statement remains ignored by mainstream media--except for a brief reference of the New Times Web-site story on Channel 3's 10 p.m. August 20 newscast.
Initially, Cotey was a defendant in the case that began in East Phoenix Justice Court and was later transferred to Maricopa County Superior Court, where Cotey filed a counterclaim against the other motorist, Chris McMann.
Cotey hired Scottsdale attorney John H. Happ to represent her in a personal-injury lawsuit filed in Superior Court stemming from an automobile accident in which she claimed to have suffered "serious injury to her neck, back, left shoulder, left arm, left leg and headaches." Happ has an unlisted phone number and could not be reached for comment.
Court records show Cotey sought in excess of $2,500 in damages stemming from injuries plus additional compensation for lost wages.
Records show Cotey's case was sent to arbitration in 1988 but do not indicate whether an arbitrator ever reviewed the matter. The arbitrator, Gerald K. Gaffaney, said last week after reviewing his 1988 calendar that he doesn't recall hearing the matter. The case was dismissed by Judge Alan S. Kamin in November 1989.
Cotey certified that she gave truthful answers to the questions when she submitted the juror questionnaire. She could face perjury charges if she knowingly provided false information.
Cotey's false answer on the questionnaire apparently was unknown to the court and attorneys and was not a consideration in her removal from the jury.
There is at least one other item in Cotey's questionnaire that appears to contradict some of her public statements and raises questions of whether Cotey was avoiding press accounts of the trial, as jurors had been instructed.
Cotey stated in the questionnaire that she did not "currently" read any newspapers on a regular basis. Subsequent responses indicated that when she does read a newspaper, she reads the entire paper.
Cotey stated during an August 21 interview with KFYI radio that she subscribes to the Scottsdale Progress-Tribune, which publishes Mark Flatten's work. Soon after the trial started, Cotey took a copy of a Tribune article written by Flatten profiling individual jurors to court and showed it to at least one other juror.
A court clerk reported the incident to Strand, who again admonished the jury not to read or watch media reports on the trial.
In an interview with New Times, Cotey also indicated she was familiar with this reporter's coverage of the trial. Cotey told two other New Times staffers who went to her home that they deserved an interview since she doubted that "what's his face" would ever get into her apartment.
She followed that with a knowing assessment of this reporter--a curious admission from someone who was not supposed to be reading articles or watching TV news accounts about the trial.
"Not that I don't like him," Cotey said. "He's okay. He's got a job to do."
Cotey told New Times that she defended the governor to the other jurors by saying that, as a wealthy man, "why should he worry about what his employee was sticking in front of him to sign?"
She says such views were met with derision from the other jurors. One, she says, questioned one of her assessments by citing his qualifications as a psychologist. Another was less subtle: "How can you say that, he's a dirty rat!" Cotey claims she was told.
"I mean, it sounded like it was all wrapped up and I had to go the right way."
She admitted to holding out on some elements of her votes, which generated friction with other jurors, especially when she explained to them that she had the right to "hold out" on some of her opinions.
"It will be a happier place," Cotey says, explaining that the alternate juror who has replaced her is gregarious and friendly. That prompted her to launch into a long digression about a conversation she held with the alternate, which included explanations of how to catch clams and the proper spelling of the word "quahog."
The alternate is a 50ish female registered as an Independent who voted for Democrat Eddie Basha in the 1994 gubernatorial election.
Before August 20, John Dowd clearly believed his strongest action for appeal was the prosecution's disclosure of the fact that Symington didn't pay income taxes in 1986. Although Strand ordered the jury to disregard testimony about Symington's payment or nonpayment of taxes, Dowd argued that mention of the tax issue has "poisoned the well" and unfairly prejudiced jurors.
The dismissal of Mary Jane Cotey has now supplanted taxes as the prime appellate issue.
Dowd cites Cotey's removal as the basis for a pending motion for a mistrial. Dowd told Strand on Monday, August 25, "there is no [legal] authority which forms the basis for her removal" from the jury.
Strand did not immediately rule on Dowd's mistrial motion.
But the matter is not likely to go away.
If the jury convicts Symington, Dowd is expected to immediately ask Strand to nullify the verdict based primarily on Cotey's removal from the jury.
If Strand refuses to nullify the verdict, an appeal seems certain. That process normally wouldn't begin until after Symington is sentenced. In federal court, a person is not technically convicted until he is sentenced. This is an important point, because the second Symington were sentenced, state law would disqualify him to be governor.
Dowd has hinted he may appeal a conviction prior to sentencing. But legal scholars say appellate courts rarely agree to hear an appeal prior to sentencing, even if the appeal comes from a sitting governor.
"There are no special rules in court that deal with the prosecution of governors," says Arizona State University law professor Ralph S. Spritzer.
Since the Ninth U.S. Circuit Court of Appeals considers cases in the order they are received, it would likely be many months, if not years, before the justices would hear an appeal.
One legal expert familiar with the Ninth Circuit says despite the uproar over Cotey's removal from the jury, Dowd would have a tough task convincing the court to overrule Strand and order a new trial.
The expert, who asked not to be identified, says Dowd must show that Strand made an egregious error in removing Cotey.
"The judge has to be really wrong--not just wrong, but really wrong," the expert says.
The appeals court, the expert says, will likely give "substantial deference" to Strand's "factual findings" because he "sat through a 13-week trial, observed the jurors, questioned this juror in particular and questioned the other . . . jurors."
Despite the dismal outlook for Dowd's client, don't expect Symington to give up until every last legal avenue can be exploited.
Ironically, it's Symington--who has lambasted the "liberal federal judges" for protecting the accused and the guilty--who now is relying so heavily on a federal judge's discretion.
"The courts have fashioned a broad range of criminals' rights that greatly hinder every phase of criminal justice, from arrest to trial to punishment," Symington complained to the Arizona Town Hall last November.
He's not complaining now.
