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Judge Declines to Grant Mistrial Over Jury Unrest in Refco Fraud Case
New York Law Journal
July 10, 2009
Threats by one juror to cut off the finger of another led the defense team for Mayer Brown partner Joseph Collins to ask Thursday for a mistrial in the Refco Inc. federal fraud case.
Southern District of New York Judge Robert P. Patterson denied the request after an early morning inquiry into relations among the jurors, who have been hearing testimony in United States v. Collins, 07 CR 1170, since the case got under way on May 13.
At the onset of the sixth day of deliberations on whether Collins helped commit the massive fraud that drove the financial services company into ruin, Judge Patterson received a note from Juror No. 4, known only as Kevin. According to a transcript of the exchange, Juror No. 4 complained about Juror No. 9, Abigail O'Connell.
"Although I appreciate your efforts to control the frequent insults I have endured, the threat of bodily harm brings this abuse to a whole new level," said Juror No. 4. "Juror O'Connell threatened to 'cut off your (my) finger.' She made that statement twice. In the same tirade she stated, 'I will have my husband take care of you.'"
The threats were allegedly made during deliberations on July 8 and the note describing the controversy was passed to Judge Patterson before all of the jurors had arrived at 500 Pearl St. to resume their deliberations Thursday morning.
A second note was forwarded to the judge shortly thereafter, once the jurors had assembled. Signed by the foreperson, it referenced the earlier note from Juror No. 4, Kevin, and said, "...it is my personal opinion that the altercation yesterday could be traced to both parties involved. There has [sic] also been numerous occasions regarding respectfulness on the part of Juror Number 4 (Kevin)."
After the notes were read, defense attorney William J. Schwartz of Cooley Godward Kronish moved for a mistrial, saying, "It seems to us at least that it is very difficult for this jury to continue rational deliberation."
"One of the jurors has even noted in one of the notes the chilling effect of the altercation on other jurors," Schwartz said. "We think at this point further deliberation is pointless."
In denying the motion, Judge Patterson said the jury "will let us know if they feel that the atmosphere is such that there's not communication in a rational manner."
The lawyers for Collins also were concerned that someone may have entered the jury room on July 8 during deliberations.
But in an inquiry Thursday, it was discovered that after a law clerk heard shouting from the jury room, the law clerk asked a court security officer to enter the room and tell the jurors to pipe down.
Schwartz then said, "This whole series of events, at least in my experience, your honor, is a little bit unusual, with contact from the outside, jurors threatening each other."
Schwartz renewed his request for a mistrial and, after prosecutor Christopher J. Garcia declined to consent, the judge denied the motion.
The jury was apparently back on track by the end of Thursday. They had requested additional materials on testimony and evidence from the lawyers, and are expected to resume deliberations this morning.
Collins, who joined Mayer Brown in 1994 and was responsible for handling the Refco account, is charged with one count of conspiracy, two counts of securities fraud, two counts of making a false filing with the Securities and Exchange Commission, four counts of wire fraud and five counts of bank fraud (United States v. Collins, 07 CR 1170).
He is accused of helping Refco executives hide significant debt from a bank that provided the company with a revolving line of credit, a private equity group that purchased a controlling share in the company and investors who purchased stock in an initial public offering in 2005. Overall, $2.4 billion in debt was concealed.
Collins testified in his own defense, hoping to convince the jury of what Schwartz promised them during opening arguments -- that Collins was never informed of the hidden debt and that top executives, including ex-CEO Phillip Bennett, now serving 16 years in prison, lied to him from the beginning.
Collins is on leave from Mayer Brown.
