Greater Baton Rouge Business Report: Many question decision to remove Juror 68

In the days since I interviewed Juror 68, Vic Durand, who stepped forward to tell his side of the story about what happened before he was removed from Edwin Edwards' gambling racketeering trial, I have been asked numerous questions.

Most lawyers--who understand the rule of law and remedies available to defendants--feel that U.S. District Judge Frank Polozola likely erred in removing a self-identified pro-defense juror who didn't think the prosecution had proved its case.

From some of those who think Edwards is guilty has come the observation that they don't believe he got a fair trial and that he deserves a retrial.

Some people Edwards doesn't even know cheered Appellate Judge Edith Jones decision that he has raised "questions a law or fact" that "likely will result" in reversal of the conviction or a new trial At a Monroe upper-end restaurant, the crowd cheered when the decision was announced on television. At the Men's Grill at the exclusive City Club in Baton Rouge, some voiced the opinion that he should be retried. Neither group could be considered traditional supporters of the former governor.

From Edwin-haters, who will not be satisfied until he is burned at the stake come all kinds of remarks, including some personal attacks on this reporter. These people, I find,, are those who have not read the law or Juror 68's story or any analyses of the decision by Judge Jones, a Republican Reagan appointee who is considered one of the most conservative judges on the 5th Circuit Court of Appeals bench.

As a matter of fact, a group of former Republican U.S. attorneys and Republican lawyers say it means Jones believes a new trial is likely; they also said that such a decision is so rare that none of them could recall such a case except one back in the '70s.

The story of Juror 68--Vic Durand-- was told in an interview with Louisiana's Gannett-owned newspapers (Shreveport Times, Monroe News-Star, Alexandria Town Talk, Opelousas Daily News and the Lafayette Daily Advertiser).

Durand made some pretty startling comments:

Other jurors began making up their minds that former Gov. Edwin Edwards, his son, Stephen, Galliano businessman Andrew Martin, Eunice cattle auctioneer Cecil Brown and Baton Rouge contractor Bobby Johnson were guilty during the prosecution's case, before the defense presented its case and certainly long before deliberations began.

He cited several examples.

Within weeks after the trial began, one juror made the remark, "We could be the first jury to bring down the Edwardses."

Another juror had his spouse come into the courtroom one day to observe what happened during the times the jury was excused. The juror came back the next day and told other jurors that nothing had happened in the courtroom.

There were a couple of jurors who made remarks through the trial to the effect that the Edwardses were guilty. When a witness was testifying against Bobby Johnson, they said they could look at Johnson and tell he was guilty because "he has that look of guilt."

Another juror stopped the trial when he recognized a cousin's name as a prosecution witness. He went to Judge Polozola, who interviewed him in private. The judge told the juror not to tell the other jurors what it was all about. He promptly told other jurors the whole story.

Several jurors talked about trial coverage on television and in the newspapers.

Another juror told of walking with a neighbor who told the juror, "You know they are guilty." The juror told other jurors she responded by saying, "I know."

A pro-guilty juror, after the first day's deliberations, approached Durand and said she "didn't think you were going to be like that."

Other interesting things Durand told the Gannett newspapers included such comments as:

1. Other pro-guilty jurors ganged up on him to accuse him of what 68 said are all false claims: that he "clandestinely" sneaked into the jury deliberation room a copy of the Oxford English Dictionary-- Durand said if the court had checked the surveillance cameras, they could have seen he was carrying it in full view of the marshals); that he continually brought in paper; and that he refused to deliberate. Durand said he believes they ganged up on him in order to reach the required unanimous verdict for guilty.

2. Durand wrote Polozola a note that said he had "doubts" and asked the judge if he had to explain his doubts, that he "could not erase the doubts" from his mind. He asked the judge for guidance.

3. Some six or so other jurors, outside the deliberation room, wrote a note complaining about his refusal to deliberate and his refusal to give his reasoning and said he went so far as to tell another juror not to speak to him.

4. At that point, Polozola halted deliberations and investigated the jury for several days. At the conclusion, the judge dismissed Juror 68, later telling the court that he was dismissed for being "less than truthful and refusing to follow the law."

In response, Durand said the first time the judge interviewed him, he was constantly asked if he had brought anything into the jury room other than the dictionary and a thesaurus. Overnight, he thought about it and remembered two things: In the marshal's van en route to the courtroom, he thought of a question he wanted to pose and jotted it down so he could remember it. He also once, when under stress, ripped three blank pages out of his book of notes and went into the bathroom to write calming things, the names of his wife and son.

5. He came out of the deliberation room one day and a marshal saw that he was upset. When asked what was wrong, Durand asked the marshal if it were true that jurors could go to jail if they were not unanimous on everything, which indicated he was told that inside the deliberation room. The marshal said of course not. Durand said he told her that had been said to him.

6. That's when Durand wrote the note asking Polozola: "Do I have to explain doubts in my mind?" and saying that he felt "very intimidated by other jurors because of how I feel ... and there were some doubts in my mind that would not erase from my mind." As Juror 68's attorney said, anyone with a first-grade education who could read would interpret that note to mean he had reasonable doubts about the prosecution's case.

7. After he wrote his note, about six or so pro-guilty jurors wrote a note complaining about Durand. The jurors said, "We feel a certain juror is biased and refuses to participate in deliberations. He has his mind made up, but will not discuss his reasoning."

8. Shortly thereafter, Polozola began his in-chambers investigation that led to Juror 68's dismissal.

In a recent prosecution filing with the appellate court, Polozola was quoted as saying Durand sounded "rehearsed" and said he said something "right Out of another case." Durand denies he rehearsed with anyone, and he says he has no idea what was in other cases.

9. With Durand gone, the jury took two and a half days to bring back the guilty verdicts against five of the seven defendants.

Durand, who has not changed his story since telling it to the Gannett papers last summer, said everything said about him "is totally inaccurate and false."

None of this goes to the question of whether the Edwardses or the other defendants are guilty. It does bring into question whether Juror 68 was properly removed, or whether he was removed because of his doubts, which could have resulted in a hung jury and a retrial.

Another question: Was this a fair jury? If everything Durand said is true, were these jurors able to get away with all this because they were an anonymous jury who could not be investigated by the defense for truthfulness or previous prejudicial statements? In one filing, the defense said if it had known that two jurors knew some of the defendants, they would have moved to remove them for cause.

Furthermore, all this underscores that there should be sequestered jurors in any high-profile case that carries a great deal of publicity. That's the only way their behavior can be controlled. There would be no contact with friends who tell them the defendants are guilty, no reading of newspapers or watching of television. Marshals would see to that.