Juror with law book throws McDougal trial into a spin

ERICA WERNER
ARKANSAS DEMOCRAT-GAZETTE

Susan McDougal's trial threatened to end in mistrial Friday after a juror came to court with a law book once owned by a former state judge with tangential Whitewater connections.
The situation the likes of which U.S. District Judge George Howard Jr. said he'd never seen in 19 years on the bench arose after jurors entered the jury room Friday morning for their second day of deliberating whether McDougal committed the crimes of contempt of court and obstruction of justice.
The matter consumed the day, leaving jurors just an hour to deliberate, but ended with Howard deciding that court will resume Monday morning with all 12 jurors.
Juror Michael Nance, a Little Rock truck driver, caused the flap when he came to court holding a marked-up 1996 edition of the Arkansas Code's Court Rules. That violated Howard's directive that jurors refer only to his instructions on the law.
The U.S. marshal guarding the jury room saw the volume. Howard's courtroom deputy was alerted and immediately seized it. The courtroom deputy, who alerted the judge, said jurors told her they'd decided not to look at the book.
McDougal's lawyer, Mark Geragos, who had left the federal courts building only moments before to engage in some midmorning appearances for the cameras, hurried back upstairs with his client.
When court officials opened the law book, they found three business cards and the signature of John I. Purtle, former associate justice of the state Supreme Court who was acquitted of conspiracy to commit theft in a high-profile 1986 case.
Also, they found a stickie note on Page 294 and a highlighted sentence under the heading "Juror orientation": "Jurors shall receive an orientation which informs them of the nature of their duties and introduces them to legal terminology."
"I don't see how this juror couldn't be excused," associate independent counsel Mark Barrett immediately told Howard in a conference in the judge's chambers. "It's very serious. This juror is appealing to some other authority about what the law is," though the attorneys and judge noted that the book wouldn't even apply since McDougal's is a federal case.
Barrett and Geragos asked for time to research the law, and jurors stayed in the jury room, instructed not to deliberate on the case they'd watched unfold since March 8.
When the attorneys came back, independent counsel Kenneth Starr's deputies had discovered another potential problem: Purtle had once rendered a favorable opinion in a case where McDougal was a defendant.
And, Purtle criticized Starr's deputies in 1994 when former U.S. Associate Attorney General Webb Hubbell pleaded guilty to mail fraud and tax evasion and agreed to cooperate with Starr.
"This charge is 100 percent political by people who want to tear down the Clinton administration and don't care if they destroy a good man in the process," Purtle told USA Today then.
Those words echo McDougal's defense for refusing in September 1996 and April 1998 to testify before a grand jury investigating President Clinton and Hillary Rodham Clinton, two of her former business partners in the Whitewater land deal. She says she couldn't testify because Starr would charge her with perjury unless she made up information that would help him topple the Clintons.
Starr's deputies hope jurors will agree with them that judicial orders and a grant of immunity meant McDougal was legally bound to testify.
Barrett was worried that Purtle might have tried to influence Nance.
"If there's the possibility of jury tampering here, we've got to root it out," he said, urging Howard to bring Nance in and interview him.
Geragos disagreed.
"There's a mistrial guaranteed" if Nance comes out for an interview, Geragos said. There's no way to "put that genie back in the bottle," because calling Nance out would severely disrupt the deliberative process, he added.
Geragos favored subpoenaing Purtle, and that's what Howard did. Marshals headed out to the Toad Suck community near Conway to pick up the ex-judge, and court observers spent the next hour shaking their heads over the increasingly nonstandard chain of events.
But the conventional wisdom that in Arkansas everyone's connected in some way to everyone else would soon look even wiser.
Purtle strode into Howard's chambers with a booklet-size copy of the U.S. Constitution peeking out of his shirt pocket (he takes it everywhere, he later explained) and informed the attorneys assembled of his connection to Nance.
The juror bought the ex-judge's Little Rock house in 1997, Purtle said, along with bookshelves full of discarded old books.
Purtle, who was an associate justice between 1970 and 1990, recognized the signature in the law book as his, recognized the business cards as his, and said he'd had no contact with Nance since the house transaction.
"Not as I don't want to," Purtle noted. "He seemed like a mighty fine man."
Howard dismissed Purtle.
"That took the air out of the independent counsel's conspiracy theory," Geragos said.
"Perhaps for the time being any possibility of jury tampering is set to rest," Barrett said.
But the question remained of whether Nance had sought legal instruction beyond what he'd received from Howard. Purtle said he wasn't the one who highlighted the jury orientation section or noted its place with a stickie.
"Certainly what it looks like is self-help," Barrett said, observing that the passage suggested that Nance wanted to know whether jurors "have a right to have definitions explained to them."
Thursday, jurors sent out three notes asking for clarification of legal points from Howard. The judge replied the same way to all three: that the jurors should refer back to the instructions he issued them before they began deliberating Thursday.
Nance's attempt to seek further instruction is "a big deal," Barrett said.
Howard decided to send the attorneys and reporters out of his chambers, bring Nance in, and talk to the juror alone.
For just under an hour, Starr's team, McDougal's team, McDougal's friends and family and reporters covering the trial sat in the courtroom.
"I hate waiting," said McDougal's mother, Laura Henley, as she sat reading a newspaper.
At 4:15 p.m. the court reporter walked back into the courtroom with her transcription machine, and everyone snapped to attention.
Then Howard came back in and announced that Nance would stay on the jury, and the jurors would break for the weekend and resume deliberations Monday at 9:30 a.m.
Howard brought the jurors back in, gave them an extended version of his regular admonishment to base their verdict "solely on what you hear between these four walls," and sent them home.
Outside the courts building, Geragos said he was happy with Howard's decision and lit into the Office of the Independent Counsel with more than his customary vengeance for raising the specter of jury tampering.
"If I had said stuff like that they'd be accusing me of having electrodes in my brain," he said. "Susan said, and I think it's so true, that only a Yankee could come down here and start coming up with this fanciful theory."
Geragos ended his tirade by calling Starr's deputies "insane," and he headed off to catch a plane back to Los Angeles.
Visited in his basement office in the federal building next door to the courts building, Tennessee native W. Hickman Ewing Jr., Starr's chief Little Rock deputy, denied being a Yankee.
"You can quote me on this," he said. "That the independent counsel, who is from Memphis, takes offense at being called a Yankee."
Addressing Geragos' accusation that they'd invented a conspiracy where none existed, Ewing said, "As far as we're concerned, we have the responsibility to the people of the United States that both the government and the defendant get a fair trial."
"Certainly it was proper" to look into possible improprieties once they'd discovered that Purtle was on record criticizing Starr's office, Ewing added.
Ewing said that though his office was "a little surprised" by Howard's decision, they have high respect for the judge.
McDougal faces a fine of up to $750,000 and an undetermined prison sentence if she's found guilty of the two counts of criminal contempt and one of obstruction of justice.
She has already spent 18 months behind bars for civil contempt because of her September 1996 refusal to give grand jury testimony, in addition to almost four months of a two-year sentence for four 1996 fraud convictions. Howard let her out of prison early because she has back problems.

This article was published on Saturday, April 10, 1999

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