RENO — A federal judge Thursday ousted a juror in the Harvey Whittemore campaign contribution trial after he was alleged to have made inflammatory comments about the defense.
Senior U.S. District Judge Larry Hicks told lawyers that after the government rested its case Wednesday, the male juror was said to have stated in front of other jurors, “Now we have to listen to the other side’s bullshit.”
Hicks halted the case for about 90 minutes in the morning while he and the lawyers privately questioned the juror in question.
They also questioned the other 11 jurors and two alternates.
When Hicks resumed the trial, he summoned the male juror back into court and told him he was excusing him and replacing him with one of the two alternate jurors.
Whittemore, 59, a lawyer and onetime influential lobbyist, is accused of unlawfully funneling more than $133,000 in campaign contributions to U.S. Senate Majority Leader Harry Reid.
Lead defense lawyer Dominic Gentile told the judge earlier Thursday that he was concerned the juror’s statement might have prejudiced the other jurors.
But a draft transcript of the private questioning released later in the day showed that all 14 jurors and alternates, including the accused juror, said they could still be fair and impartial for the remainder of the high-profile trial.
The accused juror, identified as Juror No. 9, was the first to be questioned, according to the transcript.
When Hicks asked him if he had made the derogatory comment, he responded:
“I did not hear that. I did not say that. I may have said that we’ll hear from the other side… And I may have said …now we’re going to listen to the other side, meaning the defense’s turn to bring their witnesses. But I never said bullshit or anything like that.”
Hicks responded, “All right. And did you overhear the term bullshit from anyone else?”
“No, I did not,” the juror said.
Hicks then called in the juror who reported hearing the comment.
“I heard him say either ‘now, we get to listen to the other side’s bullshit or the bullshit from the other side,’” the transcript quoted the juror as saying.
“So I didn’t know if he meant that he considered the defense that or that he was just overall, you know, either side.”
The juror described the physical appearance of the accused juror for the judge and the lawyers.
One of the alternates also reported hearing the comment, but she thought Juror No. 10 said it, the transcript shows.
Gentile wanted both Juror No. 9 and Juror No. 10 excused, but First Assistant U.S. Attorney Steven Myhre argued that there wasn’t enough evidence to let either one go.
Hicks then denied a motion by Gentile for a mistrial, and in the end said that although he wasn’t 100 percent certain, Juror No. 9 should be removed.
“I believe that under the circumstances, it’s a difficult question,” Hicks said. “And obviously every situation is different in every trial. But I’ll tell you that this is very troubling to the court because I’ve never seen this kind of uncertainty and yet at the same time due process considerations that strike to the core of what the court does in this courtroom.
“Under the circumstances, I think I need to excuse Juror No. 9 and not Juror No. 10.”
When Hicks resumed the trial, the defense called several character witnesses, including retired U.S. District Judge David Hagen, former Nevada Supreme Court Justice Bob Rose and former state Sen. Sue Lowden of Las Vegas, all longtime friends of Whittemore and his family. All had high praise for Whittemore’s reputation for honesty and truthfulness.
“I think he’s a completely honest person,” said Hagen who served as a federal judge in Nevada from 1993 to 2005. “He’s habitually truthful.”
Hagen, whose wife is best friends with Whittemore’s wife, also said Whittemore was “generous to a fault.”
Rose, a Supreme Court justice for 18 years until his retirement in 2007, added: “I thought he was a very honest and honorable man, and I still do.”
At the lunch break in the absence of the jurors, Reno Gazette-Journal lawyer Scott Glogovac pressed Hicks in court to clarify why the jurors were questioned in private.
Glogovac also asked that the transcript of the recorded sidebar proceeding be made available to the media, including the Gazette-Journal and Las Vegas Review-Journal, which have been covering the trial on a regular basis.
Hicks told Glogovac that the questioning was done in private because he wanted to make sure all of the jurors were candid.
There were some moments when their candor was “important” in the decision to dismiss the juror who had made the statement, Hicks said.
Whittemore is accused of using family members and employees as “conduits” to make illegal contributions to Reid’s reelection campaign in 2007 and then lying about it to the FBI.
Prosecutors contend Whittemore duped the Nevada Democrat’s campaign committee into believing the contributions came from the individuals.
Whittemore maintains his family members used their own money to contribute to Reid’s campaign, and any payments to his employees were unconditional gifts.
The trial resumes Friday with more defense witnesses and is expected to spill over into next week after the Memorial Day weekend.
Defense lawyers won’t say if they will call Whittemore to the witness stand.
Contact reporter Jeff German at jgerman@review journal.com or 702-380-8135. Follow @JGermanRJ on Twitter.