A Death in the Family

After four days of intense deliberation, the jury was only a hairbreadth away from a verdict in the federal trial of Lawyer Roy M. Cohn, charged with perjury and obstruction of justice. Once confident of a hung jury, Cohn paced nervously outside Manhattan's Foley Square Federal Court, fretting that "all bets are off." Then, in a stunning and unpredictable turn of the wheel, one juror's father suddenly died. After excusing her, Judge Archie O. Dawson declared a mistrial. Cohn, for the time being at least, was home free.

Now 37, the onetime Wunderkind of McCarthy-committee fame was accused on seven counts of tampering with grand jury witnesses in order to quash a 1959 indictment against four swindlers in the $5,000,000 stock defrauding of United Dye & Chemical Corp. Cohn faced up to 35 years in prison and $26,000 in fines. During 17 days of testimony by 67 witnesses, two of the swindlers swore that they paid $50,000 to duck indictment, and they said that one-third of the money went to Cohn. Nearing the end of its deliberation, the jury reportedly stood eleven to one for convicting Cohn on at least one count of perjury. "This is a very big disappointment," said the foreman later. "It's like being left at the altar." The anticlimax left ordinary citizens equally disappointed and understandably puzzled. Why did Judge Dawson excuse Mrs. Aribelle Mabrey, the bereaved juror whose father had died? Why not ask to have the funeral delayed a few hours? Conversely, could the trial have continued with eleven jurors? If not, why was there no alternate juror to take Mrs. Mabrey's place? The federal jury system leaves the use of alternate jurors to the discretion of each individual judge. But even if alternates are appointed--and the Cohn trial had four--they are not allowed to sit as alternates in the final deliberations.

The restriction stems from the constitution: a criminal defendant in a federal trial is entitled to twelve jurors--no more, no less. As in the Cohn case, alternates are dismissed when the testimony ends. Says Rule 24-C of the Federal Rules of Criminal Procedure: "An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." Judge Dawson had every right to excuse Mrs. Mabrey, although, under the circumstances, other judges might have considered a death in the family an insufficient excuse. Mrs. Mabrey had every right to leave, although other jurors might have been more aware of the consequences. Once she was gone, Cohn's lawyers refused to waive his right to a twelve-man jury--thus forcing a mistrial. In a second trial, the defendant usually, though not always, has an advantage, since the prosecution strategy is no longer a secret, and there is time to build a new rebuttal to damaging testimony.

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