The charges are expected to include the six counts on which Symington was convicted in September 1997. Those convictions were overturned in June by the Ninth U.S. Circuit Court of Appeals. Symington is also expected to be reindicted on at least some of the 11 counts on which the jury deadlocked in the 1997 criminal case, sources say.
A grand jury would have to reindict Symington on the 11 hung counts. Federal prosecutors would not need to reindict Symington on the six guilty counts that were overturned. Instead, prosecutors can simply ask the trial judge, U.S. District Court Judge Roger B. Strand, to set a new trial date on the guilty counts.
Symington says he's not concerned about a new trial.
"Once you have been through this once in your life, it's hard to believe, but it almost becomes the ordinary course of business. I'm not worried about it," he says. "I'm living day to day."
John Dowd, Symington's Washington, D.C., criminal attorney, said Tuesday he has "no knowledge" of grand jury proceedings or if a decision has been made to retry Symington.
Dowd said he has met with U.S. Attorney Alejandro Mayorkaso in Los Angeles and urged him to drop the case. Dowd said he spoke with Mayorkaso again on Tuesday.
"He told me he was still considering our submissions. He said he would call me. That's all I know," Dowd said.
Thom Mrozek, a spokesman for the U.S. Attorney's Office in Los Angeles, declined Tuesday to confirm or deny whether a grand jury is being formed. He would not discuss the government's position on whether to retry Symington on the guilty counts.
Mrozek said the government has 60 days from April 6 -- the date the appeals court remanded the case to the U.S. District Court in Phoenix -- to either drop some or all of the 11 hung counts, or seek a grand jury indictment on some or all of them. The government has 70 days from April 6 to either drop the charges on which Symington was convicted, or seek to retry Symington.
The first public indication of the government's decision may come either through the filing of pleadings or with the scheduling of a hearing before Strand. Mrozek said prosecutors will decide within a few weeks whether to file papers or seek a hearing.
Sources tell New Times the government is prepared to move forward and retry the former governor despite Dowd's insistence that the case be dismissed. Symington has incurred more than $5 million in legal fees during the past decade defending himself in criminal, civil and bankruptcy proceedings.
A three-judge appeals court panel overturned the 1997 verdict and vacated Symington's 30-month prison sentence. The appeals court ruled that Judge Strand had improperly removed juror Mary Jane Cotey during deliberations. Fellow jurors had complained to Strand that Cotey was inattentive during the trial and deliberations.
After individually interviewing all the jurors, Strand ruled that Cotey was unwilling or unable to fulfill her duties and she was removed from the jury. An alternate juror took her place and deliberations began anew. The new jury found Symington guilty on seven counts, one of which was later dismissed by Strand.
Symington's attorneys challenged Cotey's dismissal, claiming she was removed because she believed Symington was innocent on all charges.
The expected indictment will come as testimony continues in Symington's fraud trial in U.S. Bankruptcy Court. Three union pension funds are seeking to win an $18 million judgment against Symington stemming from a $10 million loan they gave a Symington real estate partnership for the Mercado office and retail development in downtown Phoenix.
Symington was found guilty of defrauding the pension funds in the 1997 criminal case. That count is among those expected to be refiled if the case is set for trial.
The 1997 criminal trial lasted 13 weeks and included 35 witnesses and more than 1,300 exhibits. The complex case was prosecuted by David Schindler and George Cardona. Schindler went into private practice last summer. Cardona is leaving the U.S. Attorney's Office as head of the criminal division on April 29 to take a job with the University of California Los Angeles law school.
Nevertheless, it is possible the men could be named as special assistant United States attorneys to prosecute the case. If so, they will have to do it for no pay. Schindler and Cardona declined to comment on the case or their possible future roles, if any.
Symington resigned as governor on September 5, 1997, midway through his second term and two days after the conviction. -- John Dougherty