Attempting to avoid another mistrial, federal prosecutors today tried unsuccessfully to remove the jury foreman in the retrial of Maryland Gov. Marvin Mandel, charging that the juror had been tainted by a week-end visit from a newspaper reporter.
Assistant U.S. Attorney Ronald Liebman told the presiding judge that the reporter, Roger Twigg of the Baltimore Sun, was checking an anonymous tip that the foreman was personally acquainted with Mandel and had "not told the truth" about it during the pretrial questioning of jurors.
Mandel and his attorney, Arnold M. Weiner, said that the governor did not know the foreman, but Judge Robert L. Taylor said he would have the tip investigated anyway.
He refused the prosecutors' request that the foreman, Howard O. Davis, be removed and replaced by an alternate.
The jury in the trial of Mandel and five friends on political corruption charges is supposed to be sequestered, isolated in hotel rooms away from news reports which might affect their judgment of the evidence. Davis, 67, had been allowed to visit his home in the company of a U.S. marshal. It was at the home that Twigg, the reporter, tried to see Davis.
The marshal prepared Twigg from interviewing the [WORD ILLEGIBLE] but not before Davis overheard the reporter tell Davis's wife that he was doing "background stories on all" the jurors.
The first Mandel trial ended after months in chaos in December after jurors heard news reports about two unsuccessful efforts to tamper with jury members. That jury was sequestered only after the jury-tampering efforts occurred.
This trial had moved smoothly and swiftly for two weeks until today with Judge Taylor making an unusual effort to speed up the process because the jurors are sequestered.
Recalling "how unhappy we were" with the declaration of a mistrial last December, chief federal prosecutor Barnet D. Skolnik urged Judge Taylor to strike the foreman because he might have tainted the panel.
Skolnik's major question for the judge was why did the U.S. marshal allow the foreman of a sequestered jury to go home, albeit under supervision, to make a family visit.
Defense lawyers objected to removing the juror in part out of fear that anonymous tipsters would be encouraged to continue disrupting the trial. "If you go ahead and strike this juror it's a signal to call that same reporter and start it all over again," protested Weiner, attorney for Mandel.
Before today's proceeding, Taylor ruled against a motion to quash a subpoena calling the very Rev. G. John Carcich, ousted head of the Pallottine Mission in Baltimore, to testify at the trial. Taylor held a hearing in chambers and sealed the transcript until September when a state grand jury will have concluded its own investigation of the mission's fund raising practices.
Carcich allegedly provided a $42,000 loan from Pallottine money to help Mandel pay the costs of his 1974 divorce. Mandel's codefendant, W. Dale Hess, allegedly solicited the money from Carcich for Mandel.
Prosecutors have alleged that that solicitation -- and more than $300,000 worth of real estate, clothing, vacations, jewelry and other gifts -- went to Mandel from the codefendants in exchange for the governor's assistance in getting state decisions favorable to the codefendants' business interests.
Prosecutor Liebman later rose to explain how Baltimore Sun reporter Robert Erlandson had telephoned him Friday to advise him of the anonymous tiip. Erlandson also called the judge, but failed to call defense attorneys on orders from his news editor, Liebman said. Instead, the newspaper dispatched Twigg to Frostburg to interview Davis' wife and there the reporter found Davis himself.
Deputy U.S. Marshal Melvin Hess (not related to Dale Hess) testified that he and Davis were sitting in a front room when the reporter came to the door and said he was doing a background story on the jurors.
The marshal admitted to Weiner that he had talked with Davis about the reporter during the drive back to Baltimore. "I said, (the reporter) won't be satisfied unless he gets something -- the thing is he didn't get anything from us." Davis, according to the marshal, then said he didn't want any publicity.
Sholnik pointed to Davis' last remark, that the juror would find it "unpleasant" to find his name in the newspaper, as a reason for striking Davis from the jury. "A line of the defense in this case is that some of the defendants so value their privacy . . . that they took certain steps to conceal their involvement in certain matters in order to keep their names out of the newspaper," Skolnik argued.
Weiner told the court that "this anonymous tip has no foundation as far as we know."
Skolnik maintained that the prosecutors "are of course concerned with the accuracy of the anonymous tip. If in fact Davis has met the governor on a social basis, we won't know . . . until the court gives its authority to proceed."
As Skolnik was making his last argument to remove the juror, he said, "Finally we still don't know whether this anonymous tip is true . . . the only way to find out is to ask."