Juror says he understood why she wouldn't talk

CHRIS OSHER
ARKANSAS DEMOCRAT-GAZETTE

Michael Nance said he was "appalled'' when he first heard news reports that Susan McDougal had refused to answer the questions of Whitewater prosecutors.
But the Little Rock resident said that after listening to weeks of testimony as a juror in McDougal's trial, he understood why she refused to talk.
He told reporters Monday, he resorted to bringing a law book to the deliberations on Friday in a last-ditch attempt to get five fellow jurors to see it the same way.
"I was trying to bring up what was her state of mind,'' Nance said.
"She honestly believed that even though she was given immunity, she could be held for false statements,'' Nance said.
He said he thought the law book would shed further light on the legal definitions of state of mind and innocent reason -- legal terms that had been written into the jury instructions defining criminal contempt of court and obstruction of justice in the McDougal case.
But Nance's introduction of the law book into the jury room last Friday instead briefly threatened to derail the case, prompting the judge to consider a mistrial and an FBI investigation into possible jury tampering.
The judge eventually ruled the book hadn't tainted the jury after learning the trucker had culled it from law books a former Arkansas associate supreme court justice had left behind in the house Nance bought.
Nance said he decided to turn to the law book after spending two sleepless nights mulling legal terms in the McDougal case.
"I just couldn't sleep,'' Nance said. "I was constantly rolling it over in my head as to what I could do."
Repeatedly, he would lay in bed only to find himself pulled back to the desk in his office. It was there that his wife found him well past 1 a.m. last Thursday, after she came home from her job logging in computer data.
Finally, he snatched up the law book and "started thundering through it," he recalled. But he never actually found any of the legal terms he was looking for in the book.
"I didn't have a clue as to how to use that book,'' he said. "It was just too technical."
He said he hoped the other jurors would look through the book and find some way to resolve some of their differences.
When he brought the book in Friday, another juror immediately objected, Nance recalled. He said he closed the book right away, and after a vote, the jurors agreed not to use it.
Nance said that the jurors had no idea of the flurry of legal maneuvering the law book had prompted, fearing at first that their deliberations had been halted because of a bomb threat.
U.S. District Court Judge George Howard Jr. eventually allowed the jurors to resume their deliberations, but they couldn't resolve their differences.
On Monday, the judge declared a mistrial, with the jury deadlocked on two counts of contempt of court. Jurors acquitted McDougal on a third charge -- obstruction of justice.
Nance said the divisions in the jury formed early on Thursday, the first day of deliberations.
He said the jury quickly did away with the more serious charge of obstruction of justice. One juror was undecided on that count but agreed to vote for an acquittal after all the other jurors argued against a conviction, he said.
The breakdown at first was eight to four on the remaining counts, with the majority pulling for acquittal, he said. Then, still in the first day of deliberations, one of jurors pushing for acquittal broke ranks and joined forces with those seeking convictions.
The two sides refused to alter their stances, Nance said.
"We was yelling and screaming, trying to figure out the law," he said. "It just got intense.''
Nance said the discussion got so heated that a U.S. Marshal at one point warned the participants not to become physical and told the jurors he had thought of interceding. "I don't know if he was joking or not,'' Nance said.
Jurors who wanted to convict "were dead set on it, and they weren't going to budge."
One woman pushing for conviction burst into tears whenever she was confronted and asked to explain her point of view, Nance said.
He said he personally was swayed by the testimony of Julie Hiatt Steele and Steve Smith, witnesses who testified they believed they had been pressured by the Office of the Independent Counsel to commit perjury.
"They made the most effect on me because they backed up Ms. McDougal's story,'' Nance said.
He declined to criticize the prosecution, however.
"I'm going to clarify that the Office of Independent Counsel was not on trial here," he said.
Nance, 47, had tried to avoid jury service, telling the lawyers when they interviewed prospective jurors that his religious beliefs prohibit him from judging others.
"My religious beliefs are just the way they are stated in the Bible,'' he explained on Monday. "That is that thou shall not judge one another, and if you believe in Jesus, you have to hold to that."
He said after his selection, he realized, "The flip side of that coin is that you must also go by man's law.''
On Monday, he clarified that he is Baptist but stressed that he doesn't believe in getting hung up on denominations.
"I'm just Jesus,'' he said.
Nance said he felt he had a duty because of his selection as a juror to do his best to decide the case.
He also had told the lawyers that jury service would be difficult for him since he was just getting settled into his house -- the very house where he found the law book.
The prosecution had sought to keep Nance off the jury, but McDougal's lawyer, Mark Geragos, objected to his removal, and Nance became one of the 12 impaneled to consider McDougal's fate.
"I think justice would have been done if Ms. McDougal was acquitted on all charges,'' Nance said Monday. "I think her state of mind was that she was nervous and scared, and that no matter what way she went, she would be guilty."
He believes that McDougal felt she would be convicted of something no matter what she did. "And she just clammed up.''
Now that the trial is over, Nance said he's prepared to return to a more routine lifestyle.
"I have a million in one things to do at the house,'' he said. "I've got to finish painting the fences, and planting grass and removing shrubs and rebuilding my pickup truck.''

This article was published on Tuesday, April 13, 1999

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