Although his skills were evident last week, legal experts say the media firestorm Dowd stoked in the aftermath of Mary Jane Cotey's dismissal from the Symington jury probably won't result in a mistrial or provide much fodder for an appeal.
Based on Cotey's public statements and in-chamber statements of the other jurors, it appears the remaining 11 are poised to convict Symington. If the alternate who replaced Cotey agrees with the rest of the jury, Symington's reign as governor is nearly over.
A verdict appears imminent.
Meanwhile, New Times has learned that Cotey, 74, put a false statement on the sworn jury questionnaire she completed prior to being chosen for the jury. And her comments to New Times and other news organizations suggest that she might have been reading press accounts of trial proceedings.
Cotey was removed from the jury August 19 by U.S. District Court Judge Roger B. Strand after a three-hour, closed-door hearing during which he questioned Cotey and the other jurors.
The judge, who bent over backward to be fair to Symington throughout 12 weeks of trial testimony, ruled there were sufficient legal reasons to excuse Cotey.
"It is a matter of the most serious consequence to discharge a juror. However, the Court will do so finding that Juror 161 [Cotey] is either unwilling or unable to deliberate with her colleagues," Strand ruled.
Strand apparently was impressed that testimony from Cotey and other jurors raised serious doubt about Cotey's mental stability.
"Virtually without exception, the other jurors reported that she was unable to follow the discussions, was apparently having an inability to comprehend the topic then under discussion, was not participating in the discussion process, was lacking in concentration and awareness . . . [and] would raise matters that by their subject matter appeared to not relate to the topic under discussion," Strand told Symington's defense lawyers and prosecutors.
After the jurors were interviewed individually in Strand's chambers and it began to appear that Cotey was the sole juror who favored an acquittal, Dowd protested her removal.
However, once it was clear that Strand was adamant about removing her, Dowd argued, over assistant prosecutor George Cardona's objections, that Cotey should be allowed to discuss the case with the press.
"She's free to do what she wants to do," Dowd told Strand, who agreed.
Cotey was dismissed about 5 p.m. on August 19. At the time, she was known only by her juror number, 161. Cotey refused to comment to the press at the courthouse and was driven home by another juror.
Despite her anonymity, Mark Flatten of Tribune Newspapers was inside Cotey's home later that evening, interviewing the former juror. Flatten won't say how he learned Cotey's identity--other than to say he "received a tip" and that he has "better sources."
Those sources are likely in Symington's camp. Flatten has been close to Dowd and Symington for years. He consistently downplays Symington's legal troubles and his coverage of the trial has been anemic at best.
Cotey's identity had been available only to the attorneys in the case and, presumably, Symington aides who assisted defense lawyers during the jury-selection process.
Because testimony from that day's hearing wouldn't be unsealed until the next day, Flatten interviewed Cotey without knowing why she'd been removed. Apparently, Cotey never mentioned, or Flatten did not report, that the other jurors had all agreed she was incapable of deliberating.
The next morning, August 20, the Tribune ran a Page 1 story under the headline: "Ousted juror says she was 'obstruction.'" The story states Cotey said she was removed from the panel against her will because she refused to buckle to the demands of fellow jurors.
The story triggered a barrage of television and newspaper reports, including an Arizona Republic story in which Cotey claims she was forced off the jury after "being railroaded to vote guilty on all counts."
The frenzy fueled Dowd's efforts to end the trial before a verdict was reached. He immediately seized the Tribune and Republic stories and submitted a motion on August 20 asking to interview Cotey so he could determine whether there were grounds for a mistrial. Strand had not granted the motion as of August 26.
Dowd would use more media reports, including excerpts from radio interviews of Cotey, in a subsequent motion seeking a mistrial.
As long as the hearing transcript remained sealed, many media outlets continued to focus on Cotey's claim that she was removed because she supported Symington.
Strand, at the request of media attorneys, finally released the transcripts of the crucial hearing on the afternoon of August 20.