Juror Furor

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Cotey stated in the questionnaire that she did not "currently" read any newspapers on a regular basis. Subsequent responses indicated that when she does read a newspaper, she reads the entire paper.

Cotey stated during an August 21 interview with KFYI radio that she subscribes to the Scottsdale Progress-Tribune, which publishes Mark Flatten's work. Soon after the trial started, Cotey took a copy of a Tribune article written by Flatten profiling individual jurors to court and showed it to at least one other juror.

A court clerk reported the incident to Strand, who again admonished the jury not to read or watch media reports on the trial.

In an interview with New Times, Cotey also indicated she was familiar with this reporter's coverage of the trial. Cotey told two other New Times staffers who went to her home that they deserved an interview since she doubted that "what's his face" would ever get into her apartment.

She followed that with a knowing assessment of this reporter--a curious admission from someone who was not supposed to be reading articles or watching TV news accounts about the trial.

"Not that I don't like him," Cotey said. "He's okay. He's got a job to do."
Cotey told New Times that she defended the governor to the other jurors by saying that, as a wealthy man, "why should he worry about what his employee was sticking in front of him to sign?"

She says such views were met with derision from the other jurors. One, she says, questioned one of her assessments by citing his qualifications as a psychologist. Another was less subtle: "How can you say that, he's a dirty rat!" Cotey claims she was told.

"I mean, it sounded like it was all wrapped up and I had to go the right way."

She admitted to holding out on some elements of her votes, which generated friction with other jurors, especially when she explained to them that she had the right to "hold out" on some of her opinions.

"It will be a happier place," Cotey says, explaining that the alternate juror who has replaced her is gregarious and friendly. That prompted her to launch into a long digression about a conversation she held with the alternate, which included explanations of how to catch clams and the proper spelling of the word "quahog."

The alternate is a 50ish female registered as an Independent who voted for Democrat Eddie Basha in the 1994 gubernatorial election.

Before August 20, John Dowd clearly believed his strongest action for appeal was the prosecution's disclosure of the fact that Symington didn't pay income taxes in 1986. Although Strand ordered the jury to disregard testimony about Symington's payment or nonpayment of taxes, Dowd argued that mention of the tax issue has "poisoned the well" and unfairly prejudiced jurors.

The dismissal of Mary Jane Cotey has now supplanted taxes as the prime appellate issue.

Dowd cites Cotey's removal as the basis for a pending motion for a mistrial. Dowd told Strand on Monday, August 25, "there is no [legal] authority which forms the basis for her removal" from the jury.

Strand did not immediately rule on Dowd's mistrial motion.
But the matter is not likely to go away.
If the jury convicts Symington, Dowd is expected to immediately ask Strand to nullify the verdict based primarily on Cotey's removal from the jury.

If Strand refuses to nullify the verdict, an appeal seems certain. That process normally wouldn't begin until after Symington is sentenced. In federal court, a person is not technically convicted until he is sentenced. This is an important point, because the second Symington were sentenced, state law would disqualify him to be governor.

Dowd has hinted he may appeal a conviction prior to sentencing. But legal scholars say appellate courts rarely agree to hear an appeal prior to sentencing, even if the appeal comes from a sitting governor.

"There are no special rules in court that deal with the prosecution of governors," says Arizona State University law professor Ralph S. Spritzer.

Since the Ninth U.S. Circuit Court of Appeals considers cases in the order they are received, it would likely be many months, if not years, before the justices would hear an appeal.

One legal expert familiar with the Ninth Circuit says despite the uproar over Cotey's removal from the jury, Dowd would have a tough task convincing the court to overrule Strand and order a new trial.

The expert, who asked not to be identified, says Dowd must show that Strand made an egregious error in removing Cotey.

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John Dougherty
Contact: John Dougherty