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Right up until the judge called out the numbers of the jurors who would decide the case at the recent Arthur Andersen obstruction-of-justice trial, Lisa Wacker says she expected to participate in the deliberations. Wacker, an alternate juror and a customer-service specialist with a telephone company, was under that impression, she says, because of a jury note she helped compose. In the middle of the six-week trial — which began May 6 and ended with a June 15 guilty verdict — Wacker says she and at least four other panel members agreed to send a note expressing concerns they had about the alleged napping of two fellow jurors during the trial. Jack Gallo, another juror, confirms that he made an aborted attempt to send such a note to U.S. District Judge Melinda Harmon, who presided over the Houston trial of Andersen, Enron Corp.’s former auditor. “We were concerned about their sleeping, and we were concerned about them being able to deliberate,” says Gallo, a general manager at AirTran Airways in Houston. He says he expressed those sentiments in his missive to the judge. Gallo believes his note, however, never made it to Harmon. The judge declines to comment for this story because the matter is pending in her court. According to Willie Greason, chief deputy of the U.S. Marshals office of the Southern District of Texas, however, the judge told him Thursday that during the trial she had conversed about a prospective jury note with a marshal who was helping transport jurors. The judge told him, Greason says, that she learned from the marshal that some panel members wanted to send her a note about two of their cohorts who were allegedly sleeping. But the judge told Greason that she then never received the note, Greason says. About halfway through the trial, Gallo says he spoke of his concerns to a federal marshal, who escorted the jurors on their way to rooms at a hotel in the Houston Galleria every morning and evening of the trial. Gallo says the marshal advised him to wait until the next day to say anything. Then, if Gallo still felt compelled to notify the judge, the marshal said to commit his thoughts to writing, Gallo alleges. The next morning, Gallo says, he gave the federal marshal the note. But as he handed her the slip of paper, he alleges, the marshal told him that “the judge is well aware of it.” With that guidance, Gallo says he told the marshal to “throw the note away.” Greason says the marshal, whose name he declines to disclose, does not want to respond directly to questions for this story, but through Greason the marshal alleges the following: During the trial the marshal did advise a juror who expressed concerns about the others’ napping to commit his thoughts to writing. The marshal then informed the judge that jurors were planning to draft a note. The marshal alleges that when the juror returned with the note, she asked the juror if the missive “was signed appropriately.” The marshal claims the juror hesitated and said that he would have the note rewritten. The marshal says the juror never returned with a second note. For his part, Gallo says he did not include any signatures because Harmon specifically told jurors not to use their names. According to three criminal-defense lawyers, a signature is not a requirement for a jury note. He only wrote down the numbers of the jurors who had agreed to contact the judge, Gallo says. Wacker and Ron Parnell, a budget analyst with the Houston Independent School District and a fellow juror, confirm that Gallo gave them a contemporaneous account of his aborted attempt to pass the note to the judge and his discussions with the federal marshal. Gallo and Wacker allege they interpreted the marshal’s response to mean that the judge was going to take some action to prevent the jurors who allegedly had been sleeping from participating in deliberations, thereby giving the alternates spots. They were both surprised, Gallo and Wacker say, when the opposite occurred. “I didn’t think it was right,” Wacker says. “We were all supposed to keep awake.” If a federal marshal advised jurors about a note to the judge or impeded the delivery of a message from the panel to the judge, the marshal’s employer’s policies were most likely violated, says Dan Phillips, a deputy U.S. marshal who directed security for the Andersen jurors. Phillips says, “The marshal service policy is that we don’t make suggestions or give advice to jurors.” Marshals are forbidden from even reading the notes that jurors sent to the judge, he says. Phillips declines to talk specifically about the alleged encounters between Gallo and the marshal. “I’m not going to comment on it because I don’t know what happened. It would not be appropriate, and I don’t want to speculate,” Phillips says. But Russell “Rusty” Hardin Jr., who defended Andersen, expresses alarm about the possibility that such concerns about fellow panel members’ capabilities among the jurors never reached the judge or Hardin’s defense team. “I am shocked to hear about it and will look into it,” he said when he learned about the alleged incident. Hardin notes that “the decision is not for the marshal to make. It’s for the litigants or the judge to make.” Had he heard about the jurors’ concerns during the trial, Hardin says, “we would have asked for an inquiry of the jurors and would have raised the issue about whether these people were qualified to sit.” Notably, one of the jurors identified in the note as sleeping allegedly misunderstood who was on trial. Specifically, the juror thought David Duncan, the former Andersen auditor, rather than his firm, was facing the government’s charges, Gallo and Parnell allege. Wanda McKay, another member of the jury panel, agrees and adds that the second allegedly snoozing juror mistakenly raised the question during deliberations about whether NASA was involved in the case. “Everybody was so stunned when he asked that question,” says McKay, who works as a sales associate at a chain jewelry store in Houston. “You could have heard a pin drop.” Neither of the jurors who allegedly slept during the trial could be reached for this story. Samuel Buell, one of the Assistant U.S. Attorneys on the Andersen prosecution team, says he didn’t know about the jurors’ concerns about alleged napping. He declines further comment. For other criminal-defense lawyers, the conflicting reports about the jurors’ attempt to contact the judge about alleged sleepers seems significant. “It raises questions,” says Robert Edwin Davis, a partner in Dallas’ Hughes & Luce. “It sounds to me like the facts are soft, and I would want a hearing on who communicated what to whom. One question in this context is, ‘Why didn’t the judge get a note?’” Under typical procedures, Davis says, jurors would be instructed to commit any thoughts to writing, a judge would receive a note from jurors, and would then read that missive on the record and seek a response from the lawyers on both sides. Ultimately, the judge would compose a response to the jurors on the record, Davis says. “In view of this well-known procedure, a defense lawyer could raise the question about whether this judge is avoiding a note.” In contrast, Thomas Ajamie, a plaintiffs’ lawyer and partner in Houston’s Schirrmeister Ajamie who attended the trial, downplays the significance. “That’s not going to be in the top five concerns that Rusty raises on appeal,” he says.

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