April 9, 1999
Web posted at: 6:13 p.m. EST (2213 GMT)

LITTLE ROCK, Arkansas (AllPolitics, April 9) -- Jury deliberations in the trial of Whitewater figure Susan McDougal will resume Monday after the judge ruled that a juror whose possession of a legal book disrupted the proceedings Friday can remain on the panel.

U.S. District Judge George Howard Jr. made his ruling after meeting with juror Michael Nance, a 47-year-old truck driver from Little Rock, for nearly an hour behind closed doors with no lawyers present. Nance brought with him a book dealing with Arkansas court proceedings into the jury room Friday morning.

The judge also rescinded an earlier order for an FBI investigation of possible jury tampering. He dismissed the jury for the day and said deliberations will resume Monday at 9:30 a.m. CT (10:30 a.m. ET).

Howard ruled that Nance was using the law book to "help him deal with certain problems with legal definitions." The judge also said Nance had not communicated with any third parties or considered any extraneous matters in the case.

"The court is not persuaded that there is a justifiable reason for excusing him as a juror in this case," Howard said. "The court is persuaded there is no unfair prejudice to either side at this time."

"There is no need for an FBI investigation," he added.

The jury began its deliberations Thursday on the charges of criminal contempt and obstruction of justice against McDougal. She was charged after she refused to testify before grand juries investigating her Whitewater business partners, President Bill and Hillary Rodham Clinton.

Howard halted jury deliberations and ordered the FBI investigation after it was discovered Friday morning that Nance brought the book into the jury room.

The jurors told the clerk that discovered the book that they hadn't looked at it. The book has a handwritten notation referring to a court rule that says prospective jurors shall receive instructions explaining legal terminology.

Howard also brought in for questioning John Purtle, a former Arkansas Supreme Court justice and ex-Democratic state representative from Toad Suck, Arkansas. His name and a business card were inside the book brought by Nance.

In an interview with CNN after being questioned, Purtle said that he sold his house to Nance in 1997 and that he apparently left the book behind.

"I got the impression that Judge Howard was just trying to get to the bottom of it and find out why the book was there and I believe he's done that," he said.

Independent Counsel Ken Starr's prosecutors asked the judge to dismiss Nance from the jury. Prosecutor Mark Barrett said he didn't care that the book didn't apply in federal court.

"This is very serious," Barrett said. "He's obviously appealing to something other than this court's authority."

"We want to avoid a mistrial," Barrett said. "A juror said, 'We didn't discuss this' and that's a really good sign. Eleven jurors can deliberate."

But before the ruling defense attorney Mark Geragos said that if Nance were removed there would be no way to avoid a mistrial.

"If this jury has reached a verdict and if you have some kind of a problem now and if you remove somebody, the taint is overwhelming, so it appears to me there's no way to avoid a mistrial," Geragos said.

McDougal was convicted with her husband in 1996 of fraud charges related to their savings and loan and the Whitewater land development in Arkansas. Her current trial stems from her refusal to answer questions before a federal grand jury investigating Clinton and Whitewater.

McDougal, along with her late husband, James, were partners with the Clintons in the Whitewater real estate venture that Starr has been investigating. She has said she declined to testify because Starr's office wanted her to lie about the Clintons and she feared being charged with perjury if she told the truth.

She has already served an 18-month prison sentence for civil contempt involving her refusal to testify.

Before Friday's disruption, jurors had resumed deliberations in the case against McDougal after a full day of deliberations Thursday.

After its first three hours of deliberations, the jury sent a note to the judge asking two questions that appear to relate to his jury instructions.

In his instructions to the jury, Howard said McDougal would be guilty of criminal contempt if she "willfully" violated the court order and didn't act "by accident, mistake or other innocent reason."

One question asked for a definition of "innocent reason" -- a phrase included in the written instructions for the jury. The other question asked whether there might have been an "innocent reason" for refusing to testify, even if McDougal acted "willfully" in violating a court order directing her to cooperate with Starr's probe.

McDougal has said that she refused to answer the grand jury's questions because she was afraid if she didn't give the answers Starr wanted to use to implicated Clinton, Starr would have charged her with perjury.

Late Thursday, jurors sent a third note asking whether they could consider McDougal's state of mind when she declined to testify to grand juries in 1996 and 1998 in deciding whether she is guilty of criminal contempt.

In response to each note, Howard referred the jury back to his original instructions.

Geragos relied on the "innocent reason" instruction in his closing argument on Wednesday. He told jurors that McDougal had an "innocent reason" for not answering grand jury questions, saying Starr's tactics were "something you expect to see in the Third Reich."

Geragos said that "obviously" the jurors "are having trouble with the issues. That would lead me to believe they are split in some manner." "

Barrett said he wasn't surprised by the jurors' question. "It's reassuring that they are focusing on the key issues," he said.

The judge also instructed the panel that when they deliberate the two criminal contempt charges against McDougal, they may not consider whether she believed Starr wanted her to lie in order to "get" President Bill Clinton and his wife.

But jurors may consider McDougal's concerns in deciding the single obstruction-of-justice charge.

In closing arguments Wednesday, Geragos blasted the tactics of Starr and his team and said it is hard to believe they were not out to get the Clintons.

"It's something so offensive for them to say with a straight face they wanted to look to see if they could clear the president. How dumb do they think we are?" Geragos said.

For the prosecution, attorney Julie Myers asked jurors, "Who is more credible? Two career federal prosecutors vs. the defendant who is convicted of four felonies?"

Two of Starr's prosecutors, Hickman Ewing and Ray Jahn, testified during the trial that they didn't mistreat or coerce McDougal and only wanted the truth.

The Associated Press contributed to this report.

Friday, April 9, 1999

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