As Fife Symington dons his scuba gear this week and descends beneath Hawaiian island waves as a felony-free man, one must wonder what the former governor is thinking.
More than a week has passed since the Ninth U.S. Circuit Court of Appeals overturned his September 3, 1997, conviction on six felony bank fraud charges that led to his resignation as governor.
In a 2-1 split decision, the appeals court ruled that U.S. District Court Judge Roger B. Strand erred when he removed juror Mary Jane Cotey after determining Cotey was unwilling or unable to participate in deliberations.
Instead, the appeals court ruled that Strand should have allowed Cotey to remain on the jury, even if it resulted in a hung jury and a mistrial.
No longer must Symington stand ready to report to a federal prison to serve the 30-month sentence imposed by Strand.
Symington is free to travel, his passport returned. He can vote again, his civil rights restored. He can carry a firearm and run for public office.
He can proclaim vindication before the television cameras and praise Cotey as a courageous juror who stood by her belief that he was innocent of all charges.
Already, some Republican lawmakers are breathlessly calling Symington to return to public life and run for governor in 2002.
But as the euphoria of the last week begins to subside, Symington once again will face the same core questions that have been haunting him for at least a decade and that he has refused to honestly address.
The legal battles, the political struggles, the wins and defeats and the millions of dollars spent are the outgrowth of a personal moral crisis. Symington built his professional and political career on deception and access to millions of dollars from the two women who have loved him the most--his late mother and his loyal wife.
Until Symington confronts and acknowledges his deceit, this sordid and degrading legal theater will continue. Federal prosecutors almost certainly will seek a new trial if they don't win on appeal.
The likelihood of conviction in a future trial remains very high. The facts of the case, which overwhelmingly pointed to Symington's guilt, have not changed.
The reams of conflicting financial statements are still sitting in prosecutors' files. The weeks of incriminating testimony from Symington's former chief financial officer Jim Cockerham are recorded verbatim. The contradictory and damning testimony of his loyal secretary Joyce Riebel remains on the record. Symington's own handwritten notes outlining his plan to deceive a Japanese lender are still available for all to read.
It's a slam-dunk case made far easier now that Symington no longer carries the prefix of governor.
If it were not for the incredible luck of having an obviously confused Cotey on the jury, Symington would be heading to prison rather than enjoying the freedom of the warm blue Pacific.
What is it like to swim with the fishes?
Does the 53-year-old Symington revel in the beauty of the tropical fish and plants that surround him and seek to understand their truths?
Isolated in weightlessness, with only the sound of his breath and heartbeat, does the Harvard graduate reflect upon the last decade and the tremendous toll his devious actions have taken on the lives of others?
Does he see the ghost of John Yeoman, his former accountant and campaign finance chairman who covered up his lies on financial statements and who was killed--while drunk--in a car accident just days after being indicted by federal prosecutors?
What about the specter of George Leckie, Symington's most loyal and trusted aide, who succumbed to throat cancer a few months after being acquitted on federal bid-rigging charges related to Symington's ill-fated Project SLIM?
Does he think back to the trial, where day after day his wife, Ann, sat silently behind him in the first row wiling away the hours playing word games on a yellow legal pad as she listened to a litany of testimony pointing out one lie after another?
Do the confused and anguished faces of his children, especially his daughter--who was obviously bewildered and distraught during the trial--float past his mask while he dives deeper?
Most important, does Symington see his own face?
By all appearances, Symington has not yet faced his moment as Scrooge and seen the light. Instead, he is embracing the same course of action that already has brought him to the brink of prison once.
He has dispatched his team of $350-an-hour lawyers to begin the charade of attempting to convince prosecutors to drop the case. Washington attorney John Dowd is seeking a meeting with prosecutor David Schindler to offer reasons the government should leave Symington alone.
Dowd's top reason to drop the case is that Symington already has suffered enough from being forced to resign from office in the wake of his conviction.
Dowd also continues to bluster in the daily press that the government's case against Symington is weak and never should have been prosecuted.
But the same Ninth Circuit panel that tossed out the case because of Cotey's removal also stated that it found sufficient evidence to support Symington's conviction on at least three counts.
Schindler and assistant prosecutor George Cardona are preparing to appeal the three-judge ruling to the full Ninth Circuit. If the Ninth Circuit accepts the appeal, 11 judges will be selected at random to review the case.
If the appeals court rejects the government's appeal, Schindler and Cardona will have 60 days to seek a new trial.
Schindler says he is ready to move forward with a new trial if necessary. He says he's prepared not only to retry the six counts on which Symington was previously convicted, but also will seek indictments on 11 other counts on which the jury was unable to reach verdicts.
If the full appeals court doesn't overturn the three-judge panel, Symington could face a new 17-count federal indictment by the end of the year.
A new indictment would bring Symington back to the same place he was in June 1996, when the government unleashed a 23-count indictment that ultimately led to his conviction and removal from office.
If Symington goes to trial again, it will barely create a blip in the media. His political career is in shambles. He's just another crooked developer in a state infamous for financial scoundrels.
Of course, there is another option.
But it takes courage.
Symington could look himself square in the eye and admit to himself that what he did was wrong and free himself from the Machiavellian game he's playing.
He could tell his attorneys to seek a plea agreement and agree to go to prison for six months or so.
He could thank his wife for supporting him through his travails.
He could tell his children that he made a mistake and is willing to accept the consequences.
He then could get on with his new life and use his considerable power to fulfill his dreams, whatever they are.
In the end, as it has been throughout, it's up to Symington to do the right thing. Not for us, because we no longer have to care, but for himself.
Contact John Dougherty at his online address: firstname.lastname@example.org
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