By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Harold Thompson: Addressing a difficult subject
Harold Thompson's mind reeled on August 15, a hot Friday afternoon, as he sat on a bus, heading west on Interstate 10.
For the previous three months, the bus ride to 79th Avenue, where his motor home was parked, had served as a decompression period for Thompson. He'd sort out all the words, exhibits and behavior he'd observed as a Symington trial juror.
"By the time I got to the motor home and started driving home, I felt just like a limp dishrag. I was so glad to get home," Thompson, 61, says of his daily routine.
But on August 15, getting home provided no respite.
One of the most important weeks in his life had been a disaster. After five full days, jury deliberations were perilously close to collapse. It appeared as though the jury might not reach a verdict on any of the 21 counts against Symington.
"We weren't doing anything. We wasted the whole week," Thompson recalls.
The retired Phoenix firefighter, who bears a striking resemblance to singer Kenny Rogers, rarely took notes during the trial, opting to listen and observe from his front-row seat.
But that weekend, Thompson wrote a note that changed the course of deliberations and helped seal Symington's fate.
"I am not doing right by this trial if I don't say something," Thompson's note begins. "I feel all 12 of us have a duty to do the best we can."
Thompson says he had been troubled all week by the actions and statements of fellow juror Mary Jane Cotey.
On the first day of deliberations, Thompson says, all the jurors expressed general feelings about the case. It was a mixed bag--some leaned toward guilt, others toward innocence, others undecided.
Cotey, however, had not only made up her mind, she indicated she wouldn't participate in deliberations.
Thompson says, "She [Cotey] says, 'You guys can do what you want to do, but I'm just going to vote not guilty and I'm just going to sit here.'"
Jurors asked her to explain her position.
"We could never get her to come out with any specific things on why she felt he was not guilty. She just felt he was a good man, good governor and he wasn't guilty," Thompson says.
The week culminated with the jury sending a note to Judge Roger B. Strand on August 15 stating that Cotey, who was not identified, had already made up her mind before all the counts had been reviewed.
Strand sent a note back to the jurors the same day, telling them to review the jury instructions, which directed jurors to decide the case only after all evidence had been considered and discussed.
Strand's response, Thompson indicates, didn't address the root of the problem. Thompson continued to mull the jury crisis over the weekend and came to a simple conclusion.
"I didn't feel that Mary Jane was able to comprehend and couldn't keep up with what we were doing," Thompson says.
But he was unsure what other jurors thought, because despite the first note to Strand, jurors appeared willing to continue assisting the 74-year-old Cotey. One juror helped Cotey keep track of exhibits, and several others made efforts to draw her into the deliberations.
Thompson worked on his note all weekend, and on Monday, August 18, was prepared to read it to the jury that morning. But as the moment approached, Thompson says he was paralyzed with fear.
"I don't like to talk about people behind their back or in front of their faces or either one," Thompson says.
Finally, Thompson says he slowly raised his hand, his fingers reaching barely to the top of his head, to indicate he had something to say.
"All of us must be able to follow along as we go from count to count and vote on the items on that count. I don't feel that is happening," Thompson told fellow jurors. "When we are talking about a part of the trial, things are talked about that has [sic] nothing to do with the subject," a reference to Cotey's nonsensical responses to questions from other jurors.
Thompson then turned specifically to Cotey.
"MJ, I care about you a great deal, but I wish you would consider what I have said because this is so important that we do the best job that we can. And I don't think you've been able to keep up.
"I don't want you to feel bad, but I just have to say something. I'm sorry. A lot of the time I just can't understand what you've said. I think you have closed your mind to any discussion about it."
The room was silent.
"After I got through reading that, I just, I was so stressed, I really broke down. I just couldn't handle it," Thompson says.
But Thompson's statement broke an emotional logjam. Within minutes, many jurors began relating similar feelings. As the morning progressed, the jurors shifted their deliberations from Symington to Mary Jane Cotey.
"It was a subject, I think, people were uncomfortable with," jury foreman William Carlson says. "There was relief that someone had brought something up about this."
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?"
Cotey: "Ah, because it had not been proven in court that he was guilty. Only by the exhibits and the indictment."
NT: "The exhibits and the indictment did what?"
NT: "'Only by the exhibits and the indictment,' what do you mean?"
Cotey: "Well, the indictment is the prosecutor's case. They redid the prosecution's case all the way through. They never took [consideration] of anything that we had sat in the courtroom for that 19 weeks. Never considering what was done in the courtroom during deliberations."
NT: "Was there something in the courtroom during the trial that convinced you Symington was not guilty?"
Cotey: "Ah, several things besides their treatment of me in there. By not allowing me to have my opinion, and not sitting there long enough and letting me explain one by one. They were all throwing different questions at me at different times. Some of it seemed to be a number of them getting together and a lot, most of it was [an] individual that would come out and ask a question that was bothering them. Then I would come out and try to explain to that person, and somebody would interrupt me right in the middle of it."
NT: "Aside from the deliberations, [explain] something that happened during the course of the trial that made you believe that Symington was not guilty. During the exhibits and testimony."
Cotey: "Concentration and complete reliance on the exhibits with no discussion about the witnesses that were up there. And I didn't see any witnesses that really honestly came at him except the pension-funds guy. Nobody actually came after him. They lent credence to what the prosecution had said in the courtroom. 'Well, did you know that this could be detrimental to your bank?' And they all [various bankers] said, 'No.'
"'Knowing now what you know now, would you have liked to have known?' Sure as hell we all like to read the future. I thought that was a stupid question, but they gave the only answer they could. Sure they would have been interested at the time if they knew. But they were blaming him for something that was running in the system at the time in the bank world, and the real estate conditions.
"And, by the way, there's another way where Bill [Carlson, jury foreman] lied. He said I called him [Symington] an artist. I never did. The only one I would call an artist would be Bill. [Carlson insists he remembers Cotey making the statement.]
"Because I called him [Symington] a visionary. A visionary and also, I didn't mean that so complimentary. What I meant was there are dreamers and there are doers. If you get the two together, you might have a whole person, but usually they bend one way or another. And he had visions of what the real estate market was like at the time, and you had to up your value of it because if you can pull this off--are you taping me?"
NT: "I'm listening to every word you are saying."
Cotey: "Yeah, you are taping me. Because a visionary has to imagine in the conditions that stand, that exist right today. What would I do with this? They never can, or are allowed to, or equipped to, I don't know what it is, to vision what if changes were made in this or that or the other, tomorrow. What would it be?
"So he had to have an inflated price at different reasons. I can see that. I can see that.
"And then work from that. And then we get all the financial statements again. Which, as I said before, if I was paying all those girls that much money, and men, that much money for salaries, I expect them to do their work and know what they are handling when they hand it up to you.
"Janice [Pettes, a juror] says to me, 'Well, did you have to know when you were working figures?' I said, 'Certainly I did.' But I had to find out where my boss was coming from first because he had the future plans, I didn't."
NT: "What was your impression of all these financial statements? Why did he have all these multiple financial statements for the same time period?"
Cotey: "Hey, why am I answering all your questions when you gave me such a hard time there? That cartoon, I got a cartoon for you right now."
NT: "Do you?"
Cotey: "Yeah. You'll love it."
Cotey: "I thought about it around Christmas time. It was the only way I could exorcise you from my brain."
Cotey: "The title is 'Visions of a sugar plum danced in his head.' And down below there is a fireplace and a kettle on it and a slatternly woman. And on the floor, on a dirty blanket is a little baby. And coming out of his mouth are these words, some of those words that were in your article there [a staff-written spoof of Cotey's "trial diary"]. It doesn't make a pretty picture, but it's got your work. I got even personally."
Cotey: "I didn't [have the cartoon] publicized, okay?"
Cotey: "I didn't utilize. So I'd appreciate a thank you. I just did it for me, so that's over with."
While it remains unclear why Cotey believed Symington to be innocent, she's convinced the jury modified its verdict after she was dismissed to justify how long it took to complete deliberations. The jury was instructed to begin deliberations over on August 19 when an alternate was assigned to replace Cotey. It returned its verdicts on September 3.
Cotey says when she was on the panel, the other jurors wanted to find Symington guilty on all counts, but changed their minds once she was removed. The jury returned seven guilty verdicts, three not guilty and was deadlocked on 11 counts.
"They put up a good show after I got off," Cotey says.
William Carlson: The overwhelming evidence
As the trial of J. Fife Symington III dragged on, photographs of witnesses were posted inside the jury room. After 12 weeks of testimony, pictures of 40 witnesses were displayed.
But once the case went to the jury on the afternoon of August 8, the mug shots were soon replaced by posters prepared by jurors that displayed details of Symington's multitude of financial statements.
Grouped by years, the posters were constant reminders of the scores of contradictions in personal financial statements Symington submitted to lenders.
"Before we were done, the walls were covered," says presiding juror William Carlson.
The financial statements allowed Symington to obtain hundreds of millions of dollars' worth of loans for an array of real estate partnerships he controlled.
Coincidentally, Symington's financial statements for 1990 hung near the jury-room door; as they came and went, jurors were repeatedly exposed to the most glaring example of Symington's duplicity.
The key pieces of evidence in a trial that featured more than 1,300 exhibits were two December 31, 1990, financial statements--one that claimed a net worth of $5.4 million and the other that stated a net worth of negative $4.1 million.
Evidence showed Symington submitted the two conflicting financial statements to different lenders on the same day, May 14, 1991.
"That was something that was real heavy," says Carlson, a 48-year-old engineer.
It was the coup de grace to what Carlson says was a masterfully presented case by federal prosecutors. The glaring $9 million difference finally convinced several reluctant jurors to conclude that Symington knew he was deliberately submitting false information to lenders.
Before agreeing that Symington had committed a crime in submitting those statements, the jury had spent countless hours debating the significance of other discrepancies on Symington's financial statements without coming to a unanimous conclusion.
Prosecutors spent much of the trial attempting to show jurors that Symington's grossly inflated financial statements could not have been simply the result of "errors and omissions" as claimed by the defense. Instead, prosecutors argued, they constituted a systematic effort to overstate his net worth to convince lenders to advance loans. To do this, prosecutors painstakingly pointed out each and every discrepancy on the statements.
Defense attorneys responded by presenting arguments aimed at keeping deliberations focused on minutia rather than looking at the big picture. Their strategy almost worked.
Carlson and other jurors say the jury was divided over such matters as whether loans were bona fide, the proper way to report ownership of trust funds and how to value property.
Most jurors believed funds Symington borrowed from his wife, mother and friends were bona fide loans and he should have revealed them on his financial statements. But several jurors stated that Symington's friends and relatives indicated to him they didn't care if the money was repaid, so it wasn't necessary to report the debts.
Another contentious issue was whether Symington misled lenders by listing stocks held in trust as "readily marketable securities." Once again, most jurors believed it was outrageous for Symington to claim he owned the stocks and could readily convert them to cash when the stocks were actually held in an irrevocable spendthrift trust to which Symington had no direct access and could not pledge as collateral.
But a few jurors insisted that the stocks were basically his because he was the beneficiary and received annual payments from the trust funds' earnings, so there was nothing wrong with reporting the stocks as an asset.
Jurors also clashed over whether Symington misled lenders when he derived the value of his real estate assets not from appraisals or his ownership share of a project, but on what he hoped to get out of the project at some unspecified future date. Again, most jurors believed this was a ridiculous way to value real estate; others said a person is entitled to set whatever value he or she pleases on his or her property.
The jury finally began to reach some common ground on key components of Symington's financial statements when it began to closely examine how Symington reported loans.
Carlson says he noticed on financial statements dating as far back as 1983 that Symington wasn't accurately reporting the value of loans, generally understating the actual amount owed.
"I was seeing a pattern that this wasn't, 'Oops, this is a mistake,'" he says. "The financial statements were not representing known loan amounts properly."
The jury began relying heavily on two large books that had been used by the Symington Company--one contained loan documents and the other details of Symington's numerous partnership agreements.
Once deliberations began, juror Bob Bamond, a computer programmer for the Peoria School District, was in charge of finding information in the loan and partnership books, a task that proved exceedingly easy. Bamond was quickly able to find detailed information on any Symington loan or partnership the jury discussed.
"He could take this book cold, and flip it open and find . . . a date, an interest, a loan amount, the whole works, in 20 or 30 seconds," Carlson says.
The ease with which crucial data could be found led many jurors to doubt that Symington was too busy to properly prepare his financial statements, Carlson says.
"To me, this said, if you got this at your hands there and you got people working for you who can look this up, you got it in your file cabinet, why would you have the wrong loan amount?
"It was so quick and easy. If we as strangers to your information can find it, why couldn't you find your own information? To me, that was making a pattern."
Some jurors, however, were still not convinced; they believed Symington was simply repeating old errors on subsequent statements.
Carlson says he argued this was a far-fetched excuse.
"An intelligent, accomplished man of this caliber doesn't make stupid errors like that," he says. "If they do, they catch it. They didn't get to this level of accomplishment by being a doofus."
In the end, the jury did look at the big picture--Symington's financial statements in their entirety. The $9.5 million difference on two different December 31, 1990, financial statements proved too much for anyone to ignore.
Six of the seven counts the jury found Symington guilty of occurred on or after he submitted the two wildly conflicting statements on May 14, 1991. And, jurors say, those statements helped convince the jury that Symington submitted a different false financial statement to a group of union pension funds for a $10 million loan for the Mercado in June 1990.
"I wanted to believe in the guy," says Bamond, who claims he would vote for Symington again. "I liked him. I still like him a lot. But when it came down to the hard evidence, the proof was there to convict him on those counts."
Janice Pettes: Rectitude and empathy
Janice Pettes came away from her service as a juror in the trial of J. Fife Symington III with strong opinions.
She says a man who telephoned a death threat to her during deliberations sounded like Symington's attorney, John Dowd.
She says Symington's five-witness defense presentation was "a joke."
She didn't "buy into" Symington's bizarre explanation of how he used "hoped for" future values in determining the worth of real estate on his financial statements.
Pettes is absolutely convinced Symington is guilty of seven counts of bank and wire fraud. She appears to have every reason to believe Symington is a dishonest man who should be subjected to a stiff punishment. But Pettes sees no reason for the former governor to spend a minute behind bars, and holds Symington in high esteem.
The stark dichotomy between her guilty verdicts and praise for the former governor appears to have played a crucial role in reducing the number of guilty verdicts the jury returned, which, in turn, could help Symington avoid a prison term.
Such a scenario would be just fine with Pettes, a 32-year-old managed-health-care analyst who also has a real estate license.
"I have no regrets on any of the verdicts, but I just don't see what good prison time would do," says Pettes.
Probation and community service would be a far better alternative, she explains.
"I think only hardened criminals should be in a prison, the people who are a threat to our society. The people who are out there killing and raping and hurting people," says Pettes, who describes her politics as straight-ticket Republican.
Besides, she says, it's expensive to house prisoners.
"Why should we pay our tax dollars to keep Fife Symington in prison when he's a smart man and could be valuable to the community?" Pettes asks.
Pettes feels compassion for Symington.
"I even saw him cry one day," Pettes says, recalling testimony about Symington's late mother and her feelings toward her only son.
"I almost started crying. I really felt bad for the guy at that point. Here he was. All this stuff had been brought out. He had to sit there day after day after day and listen to people say bad things about him. And I don't have any vendetta against Fife Symington."
Which are the emotions Symington's defense attorneys hoped they could evoke. While sympathy might not have been enough to win acquittal, it could reduce the number of guilty counts and lessen possible jail time, fines and restitution.
Pettes and several of her fellow jurors were not convinced Symington was submitting false financial statements to lenders between 1986 and 1989--even though Symington repeatedly submitted different financial statements riddled with inaccuracies to different lenders during the same year. The jury was hung on six counts of filing false financial statements during this period.
"I gave him the benefit of the doubt because some of the discrepancies [on financial statements] worked against him," Pettes says.
Some of the mistakes on the financial statements reduced, rather than increased, the overall value of his real estate holdings by as much as $2 million, Pettes says.
"I didn't think it was a big scheme back in 1986 when they [prosecutors] started presenting the financial statements," she says. Symington, Pettes says, appeared to her to be careless in preparing his statements, a theme the defense readily admitted during the trial.
Pettes was one of a minority of jurors who refused to believe Symington was guilty of filing false financial statements until the evidence became absolutely overwhelming.
Trial exhibits showed that on May 14, 1991, Symington submitted two different financial statements (they were dated December 31, 1990) to two different lenders. One statement was sent to Valley National Bank (now Bank One) with a claimed net worth of $5.4 million; the other statement was sent to First Interstate Bank (now Wells Fargo) showing a net worth of negative $4.1 million.
"What we had is two documents with two different net worths on the same day," Pettes explained.
No jurors believed this was simply another Symington mistake.
"This man is not stupid," Pettes says.
"Why would you not just keep one statement for that year and send it to everyone? Why are there various versions of these statements?" she says she and other jurors asked.
It was this monumental evidence that finally turned the tide against Symington, Pettes says.
"I think he got to a point where in 1990, he said, 'Oh, man, what do I do?' I think he made a bad decision. He made an illegal decision. And I think he is well aware of the decision he had made."
Pettes says she and a handful of other jurors were reluctant to find Symington guilty of similar charges in earlier years in spite of her view that Symington's defense was nonexistent and his lead attorney, Dowd, was "crude" and ineffective.
"There literally was no defense, in our opinion," she says. "I mean, five witnesses, including Symington. It was a joke."
Dowd's blustery style didn't impress Pettes.
"He's definitely not a man I would want to represent me, and he's not a good public speaker. He'd get up there and ramble on," Pettes says.
Dowd's presentation was so poor, Pettes says, she joked with other jurors that Symington should get his money back.
Pettes has other reasons to be wary of Dowd.
She still believes the man who called her home on the evening of August 21, during the second week of deliberations, and made a death threat sounds like Dowd.
"I don't know who it was. I said it sounded like John Dowd. I still hold firm to that," Pettes tells New Times.
Dowd has denied making any phone calls to jurors and says he was at a dinner party at the home of Carol Henderson, Symington's secretary, when the calls were made. Henderson also received a call that evening from a man who said, "If Fife goes down, you get $10,000. If he goes free, you die. Got that?"
Police records indicate the calls to Pettes and Henderson came from a public phone located at 24th Street and Campbell in Phoenix.
Another juror, Charlotte Hartle, also received a phone call that evening, and says a man told her, "Fife goes free, you get 10 grand," court records state.
Pettes says Hartle also believes the caller sounded like Dowd, and Hartle relayed the information to the FBI, which continues to investigate possible jury tampering. Hartle confirmed Pettes' account, but declined further comment.
Despite Pettes' concerns about Dowd and being "shocked" at the brevity of Symington's defense, the effectiveness of Dowd's performance during the trial should not be underestimated.
Pettes, for one, acknowledges she felt "sorry" for Symington, and says she was touched by the presence of Symington's family during the trial.
"The family came in every day. The son was there. The daughter was there. Ann was there. The grandmother was there," Pettes says. "You realized they are a real family and these are real people and that you are possibly going to destroy their life."
By the end of the trial, Pettes, who voted at least seven times to find Symington guilty of defrauding banks and pension funds, had come to admire Symington.
"I actually developed a respect for him," she says. "He held his head up high . . . he was a classy man."
Pettes continues to be interested in the case. She attended a December 1 hearing where she recognized one of Symington's sons as someone who attends her church.
Pettes says she approached Scott Symington and told him, "I just want to tell you I hope the best works out for your dad and I don't have anything against him. To me, it was just a job I had to do. I'm really keeping you and your family in my prayers.
"He had tears in his eyes and said, 'That really means a lot to me that you would say that.'"
It probably means even more to J. Fife Symington III.