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The Devil, You Say?

The government's novel prosecution against five Spring Shadows Glen psychiatric hospital workers wasn't going well as it entered its sixth month of testimony in early February. The defendants stood accused of insurance fraud by brainwashing patients and implanting devilishly false memories. Unbeknownst to both sides, at least ten of the 13 remaining jurors and alternate on the panel were prepared to vote not guilty, and the defense hadn't yet begun presenting its side of the case.

Then came a series of truly strange happenings that forced the removal of two jurors and an abrupt end to the marathon trial. It was as if some supernatural force had invaded Judge Ewing Werlein's courtroom and thwarted the jurist's best efforts to keep the sci-fi-ish proceeding under control.

The trial had already produced a distinctly otherworldly atmosphere. A string of former mental patients and their family members testified that Houston psychologist Judith Peterson and others used extreme therapies to convince patients that they had multiple personalities, known as alters, and had participated in satanic cult activities, including murder and cannibalism. The government charged that the patients' diagnoses -- repressed memories of evil -- resulted from brainwashing designed to keep the paying customers at Spring Shadows Glen while administrators sucked their insurance coverage dry. Defendants' attorneys countered that their clients simply provided legitimate treatment for seriously ill patients.

"This whole thing was like an unbelievable TV show," says Peterson attorney Rusty Hardin, who early on confessed that he was totally engrossed in the psychological twists of the case.

"You got all these people up there with these incredible stories as to their mental health before they ever got to Spring Shadows Glen, much less after they got there," marvels Hardin. "By the time it was over, everybody, the jury and the lawyers, was talking in terms of having alters."

Unfortunately for Judge Werlein, the incidents that led to the mistrial were all too real, and despite considerable effort by some to forget, they refused to stay repressed until the trial ran its unnatural course.

The first link in the chain of events that would demolish the trial was forged in December, when a young woman who had been treated at the hospital drove to Bush International Airport to pick up a parcel. The woman was scheduled to be a major witness for psychologist Peterson when the defense began presenting its case in early spring.

As the future witness signed for her parcel at the airport's cargo office, the worker there happened to mention he was on jury duty. When the woman casually asked what the case was about, the juror described a long-running insurance fraud trial that was in its Christmas recess.

She immediately figured out what trial he was talking about. "Oh, you must mean the Judith Peterson case," she exclaimed. Not content to leave it at that, the talkative woman went on to declare, "Well, I just want you to know, that woman saved my life. She's a wonderful friend, and she's getting a bad rap."

Meanwhile, the juror began moaning, "Oooh, I can't talk to you." Then, as the woman turned to leave the office, he admonished her that "if you really want to help your friend you won't say anything about this." And for awhile she didn't. But a time bomb had been set ticking by the airport encounter, one that wouldn't explode for another two months.

Then, in an unrelated incident early this month, several of the women jurors in the trial were walking to lunch. They spotted attorney Dan Cogdell, the lawyer for psychiatrist and defendant Gloria Keraga, smoking a cigar on the sidewalk in front of the federal building. One of the jurors, a pregnant schoolteacher, got an idea so daffy that it could only have come from some mischievous alter.

She had been to The Gingerman, a bar in the Rice Village, and recalled that it seemed an ideal place to smoke a cigar. She decided she'd advise Cogdell where he should light up his stogies. Since the judge had forbidden any contact between the jurors and trial participants, how was she to transmit her brief message?

The juror's solution to her postal problem was as bizarre as the initial idea itself. Ellen Alexander, the case manager for another federal judge, David Hittner, is an unfailingly cheerful and helpful woman, a courthouse favorite of lawyers and reporters. Several women on the Spring Shadows Glen panel had taken to visiting Alexander in her office, and the juror decided she'd entrust the court coordinator with her Gingerman message for Cogdell. When the juror dropped by Alexander's office, the case manager was out, so she simply left the note on a desk.

It was the worst possible solution. Had Alexander seen her, she would have immediately warned the juror not to attempt to communicate with a defense lawyer. Instead, the note bore no outward indication of its author.

 

"It was just addressed to Dan Cogdell," says a courthouse source. "So Ellen didn't read it and didn't know what it was. She just took it up and gave it to Cogdell, not having any idea what she was putting in motion."

News accounts and public statements at the end of the trial only mentioned unspecified reasons for the juror disqualifications. However, courthouse hallways were heavy with gossip about the bizarre events. Alexander and Cogdell refused to comment, and Hardin reacted only after the Insider received detailed accounts from other sources.

Cogdell is a familiar figure in Hittner's court. He represents former councilman and judge John Peavy, one of the five defendants in the first City Hall sting trial that had ended in a mistrial in Hittner's court last year.

After Ben Reyes and Betti Maldonado were convicted in the second sting trial last fall, Hittner wanted to push ahead immediately with the retrial of Peavy and Councilmembers John Castillo and Michael Yarbrough. Because Cogdell was stuck in the Spring Shadows Glen proceeding, Hittner grudgingly granted a postponement, though he did not hide his frustration that his court schedule was now hostage to the seemingly never-ending trial in Werlein's court.

Once Cogdell received the Gingerman note from Alexander and realized it was from a juror, he informed fellow lawyers in the case and then notified Werlein, who called in the juror. The woman managed to allay initial suspicions that she had been trying to arrange a meeting with the defense attorney at The Gingerman. The juror repeatedly explained that in retrospect her action was stupid and she couldn't justify the note -- other than she thought Cogdell would have fun at that bar.

Although some trial participants doubted that the note was grounds for dismissal, Werlein had given very strict instructions to the jury about such inappropriate contacts, and the woman's actions were a clear violation. Werlein reluctantly concluded that the juror would have to be dismissed.

Even with the dismissal, there were still 12 jurors available. But on the same weekend that Werlein pondered the fate of the note-writing juror, the fuse ran out on the fellow panelist who had the Christmas encounter at the airport with the outspoken defense witness. How that happened provides yet another strange connection in the chain of events leading to the mistrial.

The daughter of psychologist and defendant Judith Peterson is a lawyer named Heather Peterson. She worked for Rusty Hardin's law firm as a paralegal during her mother's trial. The same day that Cogdell received the juror's note from Alexander, Peterson was busy at Hardin's office, calling up future witnesses and arranging for interviews. And one of those calls just happened to be to the woman who had that conversation with the juror at the airport.

After Peterson arranged for the witness to come by the office, the woman had something further to say.

"Listen, by the way, can I tell you something if you promise not to tell anybody?" inquired the witness. Unaware of what was coming, Peterson blithely replied, "Sure."

On that Friday afternoon, Hardin was in Dallas. "Heather has just been licensed [as a lawyer] and just finished her first continuing legal education course on ethics. So this girl tells her what happened back in December," Hardin says. "And Heather goes, 'Ahggghhh.' "

Peterson immediately alerted Hardin. He and defense attorney Larry Finder interviewed the witness on Sunday afternoon to determine the facts. Preparing to deliver the bad news Monday morning to Werlein, Hardin found the judge already tied up with another matter: Cogdell and his juror conundrum.

"Poor Judge Werlein has so been so incredibly patient throughout this trial; he must feel like he's been living under a cloud," sympathizes Hardin. "He sees this whole thing disappearing before his eyes."

After dismissing the woman juror, Werlein took the opposite tack on the second incident and opined that the shipping clerk did nothing wrong. In fact, the juror had tried to prevent the witness from talking to him about the case.

Federal prosecutors, apparently sensing bias on the juror's part, favored dismissing him and continuing the case with 11 jurors, which would require approval by both the prosecutors and defense attorneys.

The defense team at first sided with the judge, arguing that the male juror had committed no impropriety and the case should continue. Some of the lawyers were convinced the jury was strongly on their side, and they wanted to carry the trial forward rather than accept a mistrial.

The issue was touchy because Cogdell already had complained that the drawn-out proceedings threatened to bankrupt his legal business. It was in the lawyer's interest to save two months' court time and get out. But if the jury was leaning toward an acquittal, then it was in the client's best interest to continue with 11 jurors.

 

"I was the last one to be brought over [to accepting a mistrial]," says Hardin, "and the reason was [the prosecutors] disliked my client the most. I had to be satisfied that we weren't going to be tried again."

That was a sticky point, because the decision on a retrial was not the prosecutors' call, but rather that of acting United States Attorney Jim DeAtley. After caucusing, defense lawyers decided it was highly unlikely the feds would retry the case. So they told Werlein they agreed with the government that the juror should be dismissed. Faced with the united front, Werlein reluctantly sent the man back to his shipping office.

With that, the defense made the final move of the trial endgame, exercising its legal right to refuse to go forward with 11 jurors. And Spring Shadows Glen vanished into thin air, just like all those repressed memories of devil worship. While the prosecution declared that it wanted to proceed with the trial, the government knew that when the final juror was dismissed, a mistrial was guaranteed.

"I could be wrong, and the government could come in and say, 'We want a retrial,' " says Hardin. "And then I would have made the wrong decision. But it was my view and everybody else's view that we believe that once the government reviews it they are not going to be willing to bite this thing off again." Officially, the United States Attorney's Office will announce its decision early next month.

If the government takes into account the jury's opinion, the defendants are home free. After the mistrial, the final jurors decided to take an informal vote. The tally was 10-2 for acquittal. According to Hardin, one of the women jurors called the wife of a defendant that evening. She casually mentioned that after further deliberation during the panel's farewell lunch, all the jurors favored acquittal.

"This woman calling was one who had voted guilty initially, and by the end of lunch she was ready to vote not guilty," chuckled Hardin. "Doesn't sound to me like she would have held up long during jury deliberation."

In a final eerie coincidence, the Insider called The Gingerman to get management's reaction to its new status as the cigar bar that helped sink a federal trial. He was referred to lawyer Glenn Diddel. In addition to representing The Gingerman, he happens to represent a group of Spring Shadows Glen nurses who sued the hospital and also provided key trial testimony for the government. Diddel says he was unaware of The Gingerman's connection to the case but was impressed with the sagacity of the woman juror's advice to Dan Cogdell.

"While we certainly would not encourage juror misconduct," Diddel solemnly intoned, "we can certainly agree that The Gingerman is the best place to smoke a cigar in the city of Houston."

Of course, that could be just his alter talking.

Don't repress your news tips. Take them to the Insider. Call him at (713)280-2483, fax him at (713)280-2483 or e-mail him at insider@houstonpress.com.


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