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Law Book Halts McDougal Jury

Susan McDougal and her fiance, Pat Harris, outside the Little Rock, Ark., federal court house Friday. (AP)

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  • By Paul Duggan
    Washington Post Staff Writer
    Saturday, April 10, 1999; Page A3

    LITTLE ROCK, April 9 The long, strange legal trip of Whitewater figure Susan McDougal took an odd and particularly Arkansan twist today, throwing her contempt trial into confusion and putting a temporary halt to jury deliberations.

    Jurors were dismissed for the weekend after officials learned that one of the panel members had improperly brought a law book into the jury deliberation room.

    For a few hours it looked like a possible eruption of Arkansans' enmity for independent counsel Kenneth W. Starr--and a potential case of jury tampering--because, notations showed, the book once belonged to a former Arkansas Supreme Court justice who has been sharply critical of Starr's operation. But it turned out to be just another tale of small-world Arkansas: The judge had left the book behind when he sold his house two years ago to a man who ended up as a juror in the latest McDougal trial.

    The episode was yet another odd twist in the long-running legal battles between Starr's prosecutors and McDougal. She is charged with criminal contempt of court and obstructing justice for refusing to testify before a grand jury in the six-year-old investigation of the failed 1980s Whitewater real estate venture, in which McDougal and her then-husband were partners with Bill and Hillary Rodham Clinton.

    The former justice who owned the law book, John I. Purtle, was hurriedly subpoenaed and appeared in federal court here this afternoon to explain the remarkable coincidence of his house sale to juror Michael Nance. Purtle told U.S. District Judge George Howard Jr. that he left several books in a back room of the house when he moved, including the volume Nance brought into the jury room this morning: the Arkansas Code of 1987 Annotated.

    Howard questioned Nance privately this afternoon, then announced to lawyers in McDougal's case that Nance's story was consistent with Purtle's, and that fears of jury tampering or other deliberate misconduct appeared to be unfounded. The judge--who had earlier declared his intention to refer the matter to the FBI for investigation--said Nance told him he had found the book in the house and planned to use it for guidance in McDougal's case.

    Such "extraneous material" is strictly forbidden in jury rooms during deliberations. But after interviewing Nance in his chambers, Howard said he was confident no one on the jury had been influenced by the book and announced he would allow Nance, 47, a truck driver, to remain on the panel. He then sent jurors home, telling them to return Monday to resume deliberating. They spent a day considering the charges Thursday before today's excitement intervened.

    "It certainly looked bad this morning," said associate independent counsel Mark Barrett, leaving the courthouse after what he called "a roller coaster day."

    In a state where so many people are connected through networks of longstanding personal and business relationships, the link between Purtle and Nance turned out to be "just one of those strange kind of coincidences," Barrett said. "As odd and maybe as bad as it looked this morning, the judge has indicated that he will withdraw his referral to the FBI" for an investigation. "And we think that is entirely appropriate."

    On Thursday, hours after they had begun deliberating, jurors sent notes to Howard asking for further definitions of certain legal phrases, but Howard declined to provide them. When authorities discovered the Arkansas law book this morning, they noticed that a yellow slip of paper had been used to mark a section dealing with a state judge's obligation to assist jurors in understanding legal terminology.

    The discovery of the book immediately threw McDougal's five-week-old trial into limbo, and the book's connection to Purtle aroused dark suspicions among lawyers.

    Purtle, who was appointed to the Arkansas Supreme Court in 1978 and served for 12 years, has been openly critical of Starr over the years--particularly of Starr's prosecutions of Webster L. Hubbell, a former law partner of Hillary Clinton in Little Rock's Rose Law Firm. Hubbell and Purtle were colleagues on the Arkansas high court during Hubbell's five-month tenure as a justice, beginning in 1984.

    Purtle was charged in an arson-for-profit scheme while a member of the court and was acquitted by a jury in 1986. He resigned from the bench in 1990.

    He told Howard today that since selling the house in 1997 he has not seen or spoken with Nance. "Not that I don't want to," Purtle said. "He seems like a mighty fine man."

    Yet today's confusion, and the hours that jurors have spent deliberating so far, suggests that the case is not as "cut and dried" as associate independent counsel Julie Myers asserted in her closing argument.

    The facts, at least on the surface, are not in dispute: McDougal was ordered by a judge to answer questions from Starr's lawyers before a grand jury here on Sept. 4, 1996, and again on April 28, 1998. But she steadfastly refused to testify, even after being jailed for civil contempt. She spent the maximum term of 18 months behind bars without giving in.

    Prosecutors then took the unusual step of charging her with obstructing justice, punishable by up to 10 years and a $250,000 fine, and two counts of criminal contempt, carrying up to $500,000 in fines and a prison term to be decided by Howard if she is convicted.

    But jurors must look beyond what may seem at a glance to be clear violations of the law by McDougal and weigh her conduct against the legal definitions of the crimes she is accused of committing.

    McDougal, who was convicted of fraud in a case brought by Starr's office in 1996, contends that she refused to testify before the grand jury because Starr's lawyers wanted her to falsely implicate the president in wrongdoing.

    In his instructions to the jurors, Howard said that to convict McDougal of contempt, they must conclude that she "willfully intended to violate" the court order that she testify. The judge said a crime is committed "willfully" if it is "done voluntarily and intentionally, and not by accident, mistake or other innocent reason."

    In his closing argument on Wednesday, defense attorney Mark Geragos said McDougal's expressed fear of being maliciously prosecuted by Starr's office was her "innocent reason" for refusing to testify.

    And jurors appear to be pondering that argument. Among the questions they asked Howard Thursday were: "Can an act be done both willfully and also by innocent reason? Or are the two mutually exclusive?" They also wanted a definition of "innocent reason."

    Howard simply referred them to the instructions he already had given and offered no further guidance, apparently prompting Nance to bring in the law book.

    © Copyright 1999 The Washington Post Company

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