Inside the Jury Box

The people who judged Symington look back with certainty, compassion

The next day, after the jury spent more than an hour on one topic, Cotey was unable or refused to tell jurors what had just been discussed and voted on.

"We went around and voted, and as soon as we put our hands down, one of the jurors said, 'Mary Jane, what did we just vote on?'" says Carlson. "And I think the answer was, 'Are we having lunch?'"

Cotey also told jurors that her votes in the jury room did not necessarily reflect her true beliefs, and that she would give her true position to the judge when the verdicts were read in court, several jurors say.

The prospect that Cotey might disavow the jury's verdicts once they were read in the courtroom--plus her inability or refusal to describe what the jury was discussing--triggered a second note to Strand. This time, the judge interviewed every juror, including Cotey, and decided to remove Cotey from the jury because she was unwilling or unable to deliberate.

"I felt what should happen did happen," Thompson says of Cotey's removal.
She was replaced by an alternate, and deliberations started over on August 19. The jurors completed their work on September 3, returning seven guilty verdicts, three not guilty and 11 deadlocked counts.

Cotey says she should not have been removed from the jury and that she fully participated in deliberations, but had decided to acquit Symington on all counts.

"I tried to explain my views many times to my fellow jurors. Some jurors would not listen, some jurors would not accept my views, some jurors required that I prove my views," Cotey states in a court affidavit.

But Thompson and several other jurors maintain that her dismissal, while unpleasant, was necessary. Not because of Cotey's stance on Symington, Thompson says, but because she was preventing the jury from fully performing its duties.

"I want to do the best job in anything I do," Thompson says. "I felt like we just weren't doing it. Any trial is important, but this was a little more important. So it was terrible. It was hard."

Mary Jane Cotey: "I would have voted not guilty right away"
Exiled juror Mary Jane Cotey is Fife Symington's best hope of having his case overturned on appeal.

Symington's lawyers say they will appeal his conviction immediately after sentencing, first to Judge Strand, then, if Strand rejects the appeal as expected, to the Ninth U.S. Circuit Court of Appeals.

Cotey's removal as a juror on the eighth day of deliberations provides Symington with his most powerful argument that Strand made a serious legal mistake. Strand dismissed Cotey from the jury after determining she was unwilling or unable to participate in deliberations.

Symington's lawyers say the 74-year-old Cotey was a competent juror and should have remained on the jury. If she had, Cotey says she would have voted not guilty on all counts, and Symington would not have been convicted.

Strand interviewed Cotey and the rest of the jury prior to making his decision. Nearly all of the jurors said Cotey appeared unable to fully understand and participate in the deliberations.

Several jurors interviewed by New Times for this story say Cotey would not explain how and why she had arrived at her view that Symington was not guilty of any charges.

New Times asked Cotey similar questions last week during a taped phone interview. Cotey's responses deal mostly with her relationship with fellow jurors, not with evidence presented during the trial. Here's a partial transcript from the interview:

NT: "At what point in the trial were you convinced Symington was not guilty?"

Cotey: "I wouldn't have said I would have voted not guilty right away until they started forcing the guilty and not guilty, the yes, no. And not satisfied with the not guilty.

"They would keep arguing at me, three or four at once. 'Why do you think so?' And stuff like that. So I get tired of that. I couldn't have said not guilty right away.

"But, oh, then a couple of the jurors started fighting. The two youngest ones, you know. Um. 'Why do you say that? What makes you think you know better?' And all that stuff like that. And 'tell me why.' And I tell them why. Because we have got to check the judge's instructions first. And the judge's instructions said you can't judge what's in another person's mind. And that's why we have trials. To get everything out in the open.

"As far as I was concerned, it was out in the open, but they were trying the prosecution's case and nothing else. They weren't paying enough attention to the judge's instructions and the rule of law."

NT: "What from the trial itself convinced you that Symington was innocent?"
Cotey: "Ah, I don't like that innocent bit because none of us are innocent. God knows since from the day we were born. I like a guilty and a not guilty. What convinced me he was not guilty?"

NT: "Yes."
Cotey: "Ah, because it had not been proven in court that he was guilty. Only by the exhibits and the indictment."

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