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Government to decide whether to re-try bribery case after mistrial

Former utility regulator Gary Pierce rushes past reporters last year following his initial court appearance. (Capitol Media Services photo by Howard Fischer)

Former utility regulator Gary Pierce rushes past reporters last year following his initial court appearance. (Capitol Media Services photo by Howard Fischer)

Gary Pierce and his fellow co-defendants aren’t off the hook yet, despite the government’s failed attempt to convince a jury they were part of a scheme to bribe the former utility regulator.

The futures of Pierce, his wife, Sherry Pierce, lobbyist Jim Norton and utility owner George Johnson are no more certain than they were more than a month ago when the so-called “Ghost Lobby” bribery trial began.

The Pierces were accused of accepting $31,500 in bribes from Johnson in exchange for Pierce’s favorable votes while he sat on the Arizona Corporation Commission, which regulates Johnson Utilities. Norton allegedly facilitated the bribes.

Even as prosecutors failed to convince all 12 jurors of the defendants’ guilt, the defense was also unable to sway them all to vote for acquittal.

Judge John Tuchi of U.S. District Court in Phoenix declared a mistrial on July 17 after the jury reported being deadlocked. Now, the government may opt to try the case again.

And if they want a win the second time around, the prosecution will likely have to work on the credibility of its star witness to get it.

In an exclusive interview with the Arizona Capitol Times, jury foreperson Taryn Jeffries said the jurors were split 7-5 on the verdict, with the majority voting to acquit all four defendants.

The five who believed the Pierces, Norton and Johnson were guilty relied more heavily on the testimony of unindicted co-conspirator Kelly Norton and her confidante at the time of the alleged scheme, Gayle Burns. Jeffries was not so quick to take Kelly Norton at her word. She said she noticed inconsistencies in her statements that led Jeffries to question her story.

And Jeffries didn’t think Burns, wife of current Corporation Commissioner Bob Burns, did an especially good job of backing Norton up.

That leaves the prosecution in a tough spot of bolstering the credibility of a witness whose testimony is essentially locked in.

Norton, who was married to Jim Norton at the time of the alleged scheme, received immunity from the government in exchange for her cooperation. She agreed to provide records she kept at the time she claimed to have been facilitating the bribery of the Pierces, and she had no choice but to testify at trial.

Jeffries noted Norton’s immunity deal played a role in her calculation of the co-conspirator’s credibility.

The jurors had to agree on 32 separate charges, eight for each defendant, meaning the defense had to convince just one person that there was reasonable doubt in the case — they convinced seven.

And considering how Jeffries weighed Kelly Norton’s part in the case, Gary Pierce’s attorney, Pat Gitre, reiterated what the defense had said all along — that Norton’s credibility was a problem.

And Sherry Pierce’s attorney, Ashley Adams, was confident the defense could bring that credibility into question all over again.

She said the evidence revealed the holes in Norton’s story, and Burns “was basically a parrot” who could only testify about what Norton had told her.

“And if you don’t believe Kelly, you’re not going to believe Gayle,” Adams said.

If Adams could go back and do anything differently, especially in light of Jeffries’ insight, she said she would have an expert testify about the reasonableness of the $3,500 per month Sherry Pierce was paid for consultancy work Kelly Norton hired her to do on behalf of Johnson.  The government alleged that was merely a “no-show job” and the payments just bribes funneled to her husband.

But any speculation on what comes next is just that — speculation.

The decision rests with the U.S. Attorney for Arizona.

Spokesman Cosme Lopez declined to comment on whether the case would be retried. He spoke briefly to the Capitol Times about 24 hours after the mistrial was declared.

The government has until August 13 to decide on whether to retry the case.

Jeffries later tweeted that Tuchi told the jurors a second trial would not begin until at least January if it returns to court at all.

As the foreperson, it was her job to pen the letter to Tuchi informing him of the impasse. She considered it the jurors’ job to deliver a verdict, and writing that note to the judge was hard for her, she said.

But for both the defense and the prosecution, it’s more than that.

“There’s no closure,” Adams said. “It’s kind of like getting second place … It’s over, but there’s really not any resolution.”

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