Second chance for Ryan

Juror replacement rulings likely focus of appeals court today

Did U.S. District Judge Rebecca Pallmeyer "abuse her discretion" when she replaced two jurors -- after eight days of deliberations -- for concealing their run-ins with the law?

That likely will be the focus of questions from the judges of the 7th Circuit Court of Appeals today, when they take up the convictions of former Gov. George Ryan and his friend Larry Warner.

"It might very well be that the Court of Appeals will decide that was improper, it was error, and a mistrial should have been declared," Pallmeyer said when she made her decision last year. "But it seems to me that it's also possible the Court of Appeals will view that as an appropriate exercise of discretion. If I am wrong, it will not be the first time I was reversed, and I am not afraid to be reversed."

A reversal would likely mean a new trial for Ryan and Warner. An affirmance would send Ryan and Warner to prison.

More often than not, appellate courts uphold convictions. Courts in the past have held that defendants are entitled to a "fair" trial, not a "perfect" one.

A year ago, Judge Richard Posner -- who will likely be among those hearing Ryan's case today -- upheld the conviction of Michael Spano Sr., even though a juror brought to court a book about mob boss Al Capone's Cicero in the 1920s and jurors mentioned Spano's reputed mob ties during deliberations.

"The judge observed realistically that most Chicagoans have some awareness of the association between Capone and Cicero," Posner wrote.

If the court was not bothered by that, will the judges be bothered by Ryan juror Denise Peterson bringing in an Internet page -- something that's against the rules -- and using it to warn juror Evelyn Ezell that "refusing to deliberate" could get her bounced from the jury?

Pallmeyer pulled Ezell off the jury eight days into deliberations when the judge learned Ezell concealed an extensive arrest record. Other jurors later said her run-ins with the law might be tied to her refusal to vote to convict Ryan on some counts -- a charge Ezell denies.

"My arrests had nothing to do with it," Ezell said. "When trial first began, I was in the mind ... that he was guilty. But as the trial continued on, some of the evidence I didn't believe."

While the odds generally favor the prosecution, these judges already gave Round 1 to Ryan, postponing his report-to-prison date from January until the appeal is decided.

"The fact that the appellate court let Ryan out on bond means they at least think it's a serious argument," said Northwestern University Law Professor Al Alschuler. "It is very hard to find any cases anywhere where you have substituted two alternates for jurors after eight days of deliberations."

Ryan's well-known defense attorney Dan Webb starts a trial in Virginia today, so his Washington, D.C.-based partner Gene Schaerr will fly in to make the argument against Prosecutor Patrick Collins. Warner's attorney Marc Martin will argue that Warner should never have been tried with Ryan.

The first three of Ryan's arguments for a new trial deal with juror issues. But he also raises a few others, including Pallmeyer's refusal to allow him to present more information that would have portrayed him in a favorable light.

apallasch@suntimes.com