Governor J. Fife Symington III's criminal trial took a bizarre turn Tuesday, August 19, when U.S. District Court Judge Roger B. Strand dismissed a 72-year-old woman from the jury, which had been deliberating for more than seven days.
Strand thanked the juror for her 13 weeks of service and said the 11 remaining jurors would continue deliberations Wednesday morning. Symington faces 19 bank-fraud charges and one count each of attempted extortion and perjury.
The excused juror declined to comment to a horde of reporters gathered outside the federal courthouse. Television crews followed the woman across First Avenue to a parking garage. She was escorted by fellow jurors and a team of U.S. marshals.
The juror, a retired bookkeeper, had suffered health problems earlier in the trial. She suffered a broken right arm prior to being selected a juror and had the arm rebroken in June by doctors, causing a one-day delay in the trial.
Strand excused the woman after meeting for more than three hours behind closed doors with prosecutors and defense attorneys. All parties also met privately with the judge on August 15.
After Strand excused the jury for the day, defense attorney John Dowd requested a hearing to determine whether one of four alternate jurors should be added to the jury. Strand set a hearing on the matter for 8:45 a.m. Wednesday.
Dowd said proceeding with 11 jurors moved the case "into virgin territory."
"I want to go research it," Dowd told reporters Tuesday afternoon. "I've never proceeded with 11, so I'm going to find out if I have to or not."
Dowd said he'd prefer a 12-person jury.
Prosecutor David Schindler declined to comment about the juror's dismissal or his preference on jury size.
Sixteen jurors heard testimony during the trial. Four were selected at random on August 8 to become alternates. Strand admonished the alternates to refrain from discussing the case or reviewing media reports related to the trial in "the unlikely" case one could be recalled to the jury.
One federal court expert says it is unusual for a juror to be dismissed once deliberations have begun. Typically, the jury would continue with 11 members if both the defense and prosecution agree. If there is a dispute, then one of the alternates would likely be seated.
"It's certainly hard and fast that you're entitled to a jury of 12. You can't get rid of that unless you agree to it," says the expert, who asked not to be identified.
The expert also says Strand's compliments to the juror probably means the juror has a health problem. If the juror had violated jury rules such as discussing the case with others, Strand's comments likely would have been far more strident.
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"If you had a juror you were questioning because of some irregularity, there would be a lot more fireworks," the expert says.
Meanwhile, attorneys representing Phoenix Newspapers, Inc., asked Strand Tuesday to release transcripts of the two closed-door meetings with prosecutors and defense attorneys. Strand earlier sealed the transcripts from public review.
Strand granted Phoenix Newspapers, the publisher of the Arizona Republic, a hearing at 1:30 p.m. Wednesday to consider its motion.
Whether it's 11 or 12 jurors, the jury will continue deliberations from 9 a.m. to 4:45 p.m. until it reaches a verdict on the complex case that included 40 witnesses and more than 1,300 exhibits.