A federal appeals court today overturned the bank fraud convictions that drove Gov. Fife Symington from office in 1997, saying a juror who insisted Symington was not guilty was wrongly removed by the judge during deliberations.
A 9th U.S. Circuit Court of Appeals panel ruled 2-1 that there was a "reasonable possibility" that Mary Jane Cotey was removed because she disagreed with other jurors about Symington's guilt, not because she failed to take part in the deliberations.
Symington--who was sentenced to 2 1/2 years behind bars but remained free on appeal--is entitled to a new trial.
His attorney, John Dowd, asked prosecutors not to retry Symington, noting the government had spent nearly a decade and millions of dollars pursuing the two-term governor. "He's lost the governorship. You can't do any more to the guy," Dowd said.
Prosecutor David Schindler said he is disappointed and might ask the full 11-member appeals court to hear the case. But he added, "We will certainly be prepared, if it comes to that, to retry the case."
Symington, 53, was convicted on fraud charges stemming from his career as a Phoenix real estate developer. Prosecutors alleged he gave false financial statements to his bankers to get them to lend him $23 million.
Symington said the errors were unintentional and should have been caught by his accountants.
He resigned immediately after his conviction in September 1997. State law would have forced him from office once his felony conviction became official at sentencing two months later.
Six days into jury deliberations, U.S. District Judge Roger Strand dismissed Cotey and replaced her with an alternate. Other jurors said that Cotey, 76, was inattentive and confused, didn't seem to understand some evidence and wouldn't explain her positions.
After interviewing Cotey and other jurors, Strand concluded that she was "either unable or unwilling to deliberate with her colleagues," a permissible ground for removal.
Cotey said later that she would have voted to acquit and that fellow jurors forced her out because they wanted to convict him.
The appeals court said a judge cannot dismiss a juror if there is a reasonable possibility that the reason stems from the juror's views. Instead, the judge must order more deliberations or declare a mistrial.
CAPTION: Former Arizona governor Fife Symington.