So near and yet so far.
Before Judge David Hittner declared a mistrial last Thursday, the hung jury in the Hotel Six trial had come within one vote during its deliberations of agreeing that former Houston city councilman Ben Reyes was guilty of bribery. In the end, the panel was stymied by the determined opposition of a lone white woman juror, who was bolstered when another panelist joined her in opposing Reyes's conviction. On the opposite side, a Hispanic woman juror was equally convinced of the guilt of all the defendants.
The mistrial set the stage for Hotel Six: The Sequel, coming to your local federal building in a matter of weeks. Everyone out there who missed the smash series of FBI videotapes of current and former city officials talking trash and taking cash can view the proceedings at their leisure during summer vacation. There will likely be plenty of good seats for the taking in Hittner's eighth-floor courtroom.
While underpaid defense lawyers are anxious to complete the rerun and get back to making real money, government attorneys on loan from the Justice Department's Washington D.C. office are hoping to delay the replay for at least two weeks and possibly until the end of the summer. After all, only a slightly demented native could relish the prospect of trying a marathon case here in blistering July and August.
Perhaps the most surprising aspect of the hung jury that mandated the replay was its apparent color blindness. Defense lawyers had sought to win support from the panel members by portraying the federal investigation as racially motivated against minority officials. They were severely limited in that effort by Judge Hittner's rulings banning evidence indicating racial targeting of defendants. The defense message, touched on in opening and closing arguments, did not get across, because members of the jury say race proved to be an inconsequential issue in the deliberations. Ethnicity, by all indications, was no influence.
The holdout juror, Penny Murdock, stated at the beginning of the deliberations she could not find any of the five defendants guilty. She cited the government's use of a tainted informer, Julio Molineiro, as the main reason for her decision. Despite nearly four days of deliberations, she never wavered from that position. While final tallies produced by the panel ranged from 92 guilty on one of Reyes's bribery counts to a 66 split on the bribery count against Peavy, jury foreman Gerald "Butch" Frazee says that at some points there was near-unanimity. That faded when it became apparent the group was hopelessly deadlocked.
Frazee would not specify the positions of individual jurors in the deliberations but confirmed that several votes on some defendants lined up 111 for conviction, and it was his feeling that convictions on some individuals could have been returned but for the lone holdout. Another source says the closest votes involved Reyes's bribery counts.
Frazee believes other jurors who eventually voted for acquittal might have been persuaded to change their positions. "I'm disappointed we didn't get to a verdict," said Frazee after Hittner dismissed the jury. He left no doubt where he stood on the case.
"I'm disappointed the city of Houston has not had an opportunity to rid itself of what it's got around its neck right now," said the 39-year-old Sugar Land resident. "My sense was, these gentlemen were guilty, and I voted guilty on every count. I've worked in political circles before, and the city of Houston deserves better than this. These people need to learn how to say no."
Frazee, the president of Agtrol International, a chemical company, says he would have liked the city of Houston to have a representative monitoring the trial proceedings. "It's obvious we've got a problem," says Frazee of the evidence he feels documented campaign and ethics law violations by the defendants. "This was a great educational process that was missed by the city."
Frazee is concerned enough about what he learned in the trial that he visited with Jay Aiyer, Mayor Lee Brown's chief of staff, the day after the mistrial. Frazee signed up for a three-minute speaking slot at City Council this week. In facing City Council, he will be addressing two of the defendants in the trial, members John Castillo and Michael Yarbrough.
"The city does not have to wait on the [re]trial to make some changes in its ethics laws," says Frazee, previewing the message he plans to give Mayor Lee Brown and the other officials.
Juror Julie Rios, a former San Antonio resident, says she favored conviction of all defendants and never seriously considered compromise. The media counted Rios as one of the two Hispanics on the jury throughout the trial, but she's actually an Italian American married to a Hispanic. She was not swayed by the defense attacks on the background of informant Molineiro, the former DEA drug informant who admitted to theft and drug use during his testimony.
"You have to get beyond Julio, and a lot of people cannot," explained Rios. "I felt in my heart that, with the evidence they were showing us and I could see, there wasn't any doubt in my mind." Rios says that despite the demonstrated good works of some of the defendants, "there's a line you can cross, and you have to know the difference between good and evil."
Like Frazee, Rios comes away from her trial experience convinced that "the city of Houston needs to take a closer look at the people who are representing this city and what's going on there [on City Council]."
Both the prosecution and defense will pay a steep price for going through the Hotel Six trial experience twice. In the case of the government, taxpayers will foot the bill, as several of the Justice Department's best trial attorneys will likely be tangled up in tape recordings for the rest of the summer.
There's also the price tag for a private contractor who provides sophisticated Trial Manager audio-visual software. It allows the prosecution to display videotapes on a split screen, concurrently with the scrolling of transcripts of the conversations. There's also the cost of renting the equipment to display the evidence, and the salary of a Virginia-based technical adviser who runs the system.
For the elite corps of Houston defense attorneys representing the remaining five defendants, the sequel to Hotel Six is an unmitigated economic disaster.
"You never look forward to this kind of combat," a visibly weary Dan Cogdell explained after the mistrial became official.
Cogdell, a highly regarded product of the Richard "Racehorse" Haynes legal stable, has had his fill of the proceedings, but has no choice about the next round.
"There's nothing fun about it," he says. "It's abusive, it's time consuming, it's hard on your personal life and it has potentially tragic results for clients. There's nothing fun to look forward to [but] getting it behind us...."
Cogdell has 17 felony trials set for next month, and all could be disrupted if the retrial goes forward within 30 days, as Hittner has vowed.
"What's hard is the financial aspect," says Cogdell, "because you get no new business coming in the door." The big-name lawyers can assign lesser-known members of their firms to the cases, but that won't work for long, according to Cogdell. "The phone doesn't ring for little baby associates that no one has heard of," he explained. "Somebody usually has three or four names when they call. If Dan Cogdell isn't there, they hang up and go to the next name."
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Of course, with Mike Ramsey, Bob Bennett and the brothers Dick DeGuerin and Mike DeGeurin all tied up in the trial, some lesser-known criminal defense attorneys may reap unexpected dividends.
If the lawyers, incumbent councilmembers and prosecutors are unhappy with the prospect of an extended replay, at least one person had reason to smile after the mistrial, and did at a party at Harlon's in Bayou Place.
Just as he had escaped serious theft and campaign violation charges in a 1991 county grand jury investigation, Ben Reyes had once again eluded a felony conviction against what some observers, and jury members, felt was overwhelming evidence. Reyes will no doubt find a summer replay of all his least favorite amateur videos infinitely preferable to certain incarceration for a decade at a Club Fed.
E-mail Tim Fleck at email@example.com.