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Poetic Justice

Former governor J. Fife Symington III, who once lambasted the courts for protecting "all manner of antisocial behavior," now awaits his own ruling from a trio of federal judges. Last week, the panel heard his appeal to overturn his September 1997 conviction on six counts of bank fraud.

As Symington and his wife, Ann, entered the small gilded and filigreed courtroom at the Ninth U.S. Circuit Court of Appeals building in San Francisco on November 4, the irony of Symington placing his fate before an institution he abhorred as governor was impossible to ignore.

For years, Symington attacked the courts, particularly the federal judiciary, along with the media and universities, for destroying civil society.

"They have all galloped off to a brave new world, dragging a confused and divided society behind them," Symington said in his infamous "Three Amigos" speech before the Arizona Town Hall in November 1996.

Symington's fate--which could include a 30-month prison sentence--now lies in the brave new world he so frequently criticized as governor, a world where Symington believes federal judges wield immense power while ignoring society's wishes.

"Federal judges today sit on life-tenured thrones, where they rule over the nation like so many philosopher kings," Symington said during his seven-year tenure as governor.

As the proceedings began, Symington stared at his hands and picked lint off the end of his tie while listening to his lawyer, Terence Lynam, argue the appeal. He often looked up with the trademark Symington countenance, a bit defiant and stone-faced. Ann mostly sat with her hands folded and watched Lynam.

One of the appellate judges, 75-year-old Betty Fletcher, clearly was sympathetic to Symington's contention that U.S. District Judge Roger B. Strand improperly ousted 74-year-old juror Mary Jane Cotey during deliberations.

Cotey was removed from the jury eight days into deliberations after Strand concluded she was unable or unwilling to participate in deliberations. Cotey has said she was forced off the jury because she believed Symington was innocent on all 23 charges.

After Cotey was replaced, the jury returned guilty verdicts on seven counts, not guilty verdicts on three counts and couldn't reach verdicts on 11 others. One guilty count was later tossed out by Strand.

Arguments before the Ninth Circuit lasted about 50 minutes, and nearly two-thirds of that time was spent on the question of Cotey's dismissal.

Fletcher is considered one of the most liberal judges on the circuit. Last month she agreed to accept senior status to clear the way for Senate confirmation of her son's appointment to the Ninth Circuit. Republicans had delayed her son's appointment for three years, saying it would violate federal nepotism rules for a mother and son to serve on the same court.

Fletcher pointedly challenged prosecutor George Cardona's contention that Cotey simply could not comprehend the case and was therefore incapable of deliberating.

Fletcher, who seemed to take umbrage at the suggestion that Cotey might have been lying about her ability to deliberate, wanted to know how much credit the court should give to Cotey's own statements that she was willing to deliberate.

"She knows it's a thin case and she's not going to convict on it. What's wrong with that?" Fletcher asked Cardona.

Cardona argued that Judge Strand had to look at what the other jurors said and was allowed to draw an inference about Cotey's true willingness or ability to participate in real deliberation.

"She was not there. She did not realize what was going on," Cardona told Fletcher.

Lynam painted a vastly different picture of Cotey. He described Cotey as a "vigorous, energetic woman in her 70s"--no doubt aware that Fletcher is a vigorous, energetic federal judge in her 70s who's effectively been forced by politics to take senior status.

But before he could get very far, Lynam was questioned by presiding Judge Wallace Tashima, who wanted to know if Strand had found that Cotey was incapable of deliberating the facts of the case before she reached a conclusion.

Lynam argued that Cotey had simply reached her own decision about Symington's guilt or innocence, and then was booted from the panel because the 11 other jurors didn't agree with her.

After Cotey told fellow jurors she was not going to vote for conviction on any counts, Lynam argued, the jury began unfairly characterizing her as incapable of deliberating.

"The juror was entitled to reach an opinion by the sixth day of deliberations," Lynam argued. "She's entitled to state that and she's entitled to hold fast to it."

Lynam relied heavily on the wording of a note from the jury, which, he argued, shows that jurors weren't saying Cotey wouldn't deliberate, but only that she had reached her conclusion and wouldn't be swayed.

The note read: "Your honor, we respectfully request direction. One juror has stated their final opinion prior to a review of all of the counts."

Lynam argued that the note showed Cotey was doing her job, and only when a second note was sent two days later did the other jurors raise the notion that Cotey was somehow incapable of serving on the panel.

When Judge Strand questioned the members of the jury, Lynam argued, the problem was not that Cotey was incompetent, but that she had fairly reached a conclusion the other 11 simply disagreed with.

"All the jurors in the case indicated that Mrs. Cotey had an opinion," Lynam argued. "There's nothing wrong with that. There shouldn't be anything wrong with that."

Judge James Fitzgerald challenged Lynam on that notion. Fitzgerald read quotes from the transcript of Strand's in-chamber interview with one of the jurors--cited in the government's brief--saying Cotey didn't seem to know what was going on.

Lynam responded that Cotey was involved in the discussion and suggested that "a juror in her early 70s contributes a lot to our jury system."

In addition to Cotey's dismissal, the Ninth Circuit is also considering five other arguments presented by the defense. They include allegations that:

* Prosecutor David Schindler improperly disclosed that Symington did not pay taxes in 1986. Strand ordered the jury to disregard the comment.

* Strand overstated the losses suffered by lenders in determining Symington's sentence.

* Prosecutors failed to present sufficient evidence that Symington knowingly made false statements to a Japanese bank. The false statements led to four guilty verdicts.

* Strand gave improper jury instructions.
The Ninth Circuit usually takes about three months to render a decision after hearing arguments.

After the hearing, Symington and lead defense attorney John Dowd answered questions from the media on the steps of the courthouse which abuts the Tenderloin, one of San Francisco's filthiest and seediest neighborhoods.

Noting that this was his first trip to watch an appeals court work, Symington said, "It was very interesting to see how they tested both sides. I think they're looking really hard at the arguments."

Dowd, silent during the arguments, offered his usual praise for the judges.
"They had all mastered the briefs and the issues. I can't ask for more than that," Dowd said.

A television reporter asked Symington how he was doing in the Scottsdale cooking school he's been attending. Symington said that he was studying basic French cuisine and plans to be a chef, either in prison or out.

"I've been in limbo a long time, but I'm enjoying learning how to be a chef," he said.

And if that means cooking in prison?
"My bags are packed," he said.


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