Like a lot of Americans, my wife Marie McCaffrey and I were appalled at the news footage of Susan McDougal being dragged in chains to testify before Ken Starr’s Whitewater grand jury in the spring of 1998. By then, her silence had earned her nearly a year and a half in some of America’s roughest prisons—including eight months in solitary confinement.
Being a writer-designer team, we filed our protest by printing buttons with a black star bisected by a red slash and reading “Free Susan McDougal/No Starr Chamber.” Jean Godden wrote a squib on the buttons, which Pat Harris, Susan McDougal’s fianc頡nd co-counsel, came across on the Internet. He tracked us down, and frequent contact led to our hosting them at a Seattle fund-raiser in late February.
Susan and Pat were bracing for their next ordeal by OIC (Office of the Independent Counsel), which was to begin on March 8 in Little Rock, Arkansas. She faced two charges of “criminal” contempt and one count of obstruction of justice for refusing to testify before Ken Starr’s Whitewater grand jury.
She had already served 18 months for “civil” contempt for the same acts of silence, but that sentence was intended to coerce her cooperation; the new charges were intended to punish her non-cooperation.
If not the “trial of the century,” Susan’s next date in court at least qualified as the trial of the last year of the century. So we decided to catch the final arguments and, we hoped, the verdict. The following account is excerpted (with selected amplifications) from my notebook of the unfolding endgame of Susan McDougal’s final duel with Ken Starr.
April 6
Leave Sea-Tac 6am. Touch down in Boise and Las Vegas, change planes in Phoenix, pass through DallasFort Worth. Land in Little Rock 5pm local time (3pm Seattle).
Arrive at Capital Hotel, a block off the Arkansas River. Gleaming white Victorian pile, dating from 1877. Phone Pat Harris in Suite 308. “You’re here, great! Get down here quick, we’ve got some work for you.” Not thrilled but how can we refuse?
Arrive at “War Room.” Unfortunately, it looks like it belongs to the losing side. Pat sits at a large dining table amid the rubble of banker’s boxes and random piles of papers. Normally laid back and cheerful, Pat is clearly exhausted but reaches into his reserves of good humor to greet us warmly.
Susan’s lead lawyer, Mark Geragos, (rhymes with “asparagus”) arrives soon after with wife Paulette and their two young kids. It’s our first meeting. Mark is tall and lankily graceful as a giraffe. With his hawk nose and swept-back hair, he looks like he’s constantly leaning into an oncoming gale, which, in a legal sense, he is.
Susan is last to appear. A strikingly handsome, charismatic woman, with thin, parabolic eyebrows that give her wide-set eyes an expression of perpetual surprise. Big hugs and a brave smile cannot conceal her anxiety tonight. Earlier that day, Judge George Howard Jr. had crippled her defense with his instructions to the jury.
McDougal faces three charges: two counts of “criminal” contempt for refusing to testify before Starr’s Whitewater grand jury, and a count of obstruction of justice for being generally “uncooperative.” The indictments were issued during the grand jury’s last days (the OIC cannot level charges on its own), and seemed gratuitously vindictive after the farce of President Clinton’s impeachment—but the show must go on.
Judge Howard had initially allowed Mark to essentially put the Starr Chamber on trial, including Julie Hyatt Steele’s explosive testimony on her own mistreatment. It came as a complete shock, then, when the judge told the jury that it could acquit Susan on the two contempt charges only if it found she had failed to testify to the grand jury by dint of “accident, mistake, or other innocent reason,” not because of prosecutorial misconduct.
Those last three words, “other innocent reason,” defined the eye of the needle through which Mark had to guide the heavily laden camel of his defense. The odds were not promising as Mark and Pat struggled to construct a persuasive closing argument for the next day.
Mark and Pat have a job for us, mostly for Marie: create four large posters to illustrate key points in Mark’s closing argument. The first includes a photo of Ken Starr testifying before Congress and his statement that he had “devised a plan” to “develop” Jim and Susan McDougal, among others, as witnesses against the Clintons by charging them with federal crimes. Two other posters show Starr henchmen Hickman Ewing and Ray Jahn with snippets of their testimony at the McDougal trial. The last depicts the steep ladder of confidence that the jury would have to climb in order to find Susan guilty “beyond a reasonable doubt.”
Seems kind of flaky, but who are we to try to out-lawyer Susan’s defense team? After a trip to Kinko’s and working on a borrowed Mac, we finish by 1am. Our 20-hour day is now over.
April 7
Ride to Federal Court House with Pat and Susan. Large gaggle of reporters and videographers penned inside a steel fence by the main entrance. Not a crazed paparazzi scene, but actually quite cordial. Observers and observed are old friends by now. We all do the “perp walk.”
Meet Susan’s clan, the Henleys: mother; father; brothers Bill, Jim (a teacher in Houston), David, and John; sister Danielle and her friend Lorretta. Pat’s parents are there, too. Sit with two veteran trial watchers, Betty and Judy, the sweetest pair of Southern ladies you could hope to meet. We rise as the jury enters. Ordinary as a random assortment of bus passengers: half are women, three are black. Judge Howard enters: elderly black man with a soft, musical voice.
The show starts promptly at 9:30. Each side has three and a half hours to present its closing arguments, but the prosecution can reserve time for the last word after Mark’s presentation. Prosecutor Julie Myers leads off. Tiny but strong, clad in a dark, closely tailored suit that looks like its made out of Kevlar. Speaks in a strident, nasal tone that instantly grates. I glance at the women on the jury: I don’t think they like her much.
Evidence is “cut and dry,” she says. Susan “willfully disobeyed” two lawful orders to testify. “The legal system is not Burger King. She’s not entitled to have it her way.” Oh, dear.
Susan “refused to answer any questions that would help the OIC.” Why? “Because she hates the government. That’s her real reason, not a bunch of phony excuses [like not trusting Ken Starr as far she could throw him].” Myers “proves” that Susan “will lie to get her way” by showing false entries from her first job applications back nearly 20 years ago. Everybody squirms. If lying on job applications is a federal crime, we’re all in trouble.
Proceeds to “unpack” judge’s instructions to the jury (which have not yet been presented formally). Makes big deal about instruction that the jury can disregard all of a witness’ testimony if they find any part of it untruthful. “It’s like a bad stew. You don’t pick out all the bad pieces of meat and eat the rest. You throw the whole thing out.” Unfortunate metaphor right before lunch break.
After lunch, Myers focuses on Susan’s charge that her ex-husband Jim McDougal told her to concoct a story about a sexcapade with Clinton in order to get them both out of jail. Myers asks, “Isn’t it convenient that the one witness who could corroborate her story is no longer around?” This reminds jury that despite cooperating with Starr’s gang, McDougal died in prison. Is Myers a mole working for our side?
Next, it’s Geragos’ turn.
When Mark speaks to the jury, he leans forward and talks directly, unlike Myers, who lectured at the jury.
“We do not live in a totalitarian state,” he says. “You are in control. You have to determine if the government is seeking the truth. No one can second-guess you.” It’s very close to an appeal for “jury nullification,” i.e., reaching a verdict regardless of the law, but then he reminds them of one of Judge Howard’s instructions: “The government wins whenever justice is served.”
He skewers the prosecution, whose “sense of humor must have been surgically removed.” They say they sent Susan to jail in order to prove President Clinton’s innocence. They say she went to jail in order to get on TV. They say she lies to get her way, but she wouldn’t just say, “I slept with the president” to gain her freedom. “Just how dumb do they think we are?”
Mark’s temperature rises as he points to prosecutors: “They’re not seeking the truth, they’re litigating. It’s just a game to them. When these people ask for the truth, run for the hills.
“We haven’t seen tactics like this since the Third Reich. You’re the only check and balance on this government, this tyranny. They hide behind the grand jury, they hide behind Congress, now they want to hide behind you. Don’t let them use you.”
After a strategic break that denies the prosecution any “time out,” Mark offers a simple summation (and uses our chart on the hierarchy of confidence) focusing on the magic words “innocent reason.” “The government carries the burden of proof. You do not have to find a person innocent, only not guilty of the charges, but this is one of those rare instances where I can say that my client truly is innocent. I don’t believe Susan McDougal went to jail for 18 months because she didn’t have an innocent reason.”
Mark Barrett of the prosecution team now takes his turn. A large, beefy man with close-cropped red hair and beard, he is much more personable than Myers. But he’s also rattled. He starts out in a purple rage. “I don’t appreciate being compared to Nazis. My father fought the Nazis.” Barrett never hits his stride as he recaps the key arguments, and he doesn’t do his cause any good when he rationalizes threatening potential witnesses with prosecution: “If people don’t see the light, they’ll feel the heat.”
Judge Howard recesses the trial promptly at 5pm.We do the “perp walk” again and return to the hotel. Later on, we join Susan, Pat, Mark, and his wife, Paulette, for dinner. After finding several restaurants closed, we end up at the Faded Rose. This is what the Blue Moon would look like if it served food. We squeeze into the last available booth, next to Geraldo Rivera and his crew, who later commandeer a cigar store late into the night. We take the wiser course and go to bed.
April 8
Glorious morning. Air is soft and warm. We walk to the Court House to hear the judge read the instructions to the jury. He finishes at 10:30, and the jury files out to start deliberating. We return to the hotel and join the clan in the restaurant. This is our first quiet moment. Everyone is surprisingly relaxed, but then they’ve been facing one trial or another since 1986, when three of Susan’s brothers got tangled up in the collapse of Jim McDougal’s financial empire. The stress breaks through only once when Susan bursts into tears while describing the physical and mental abuse of a fellow inmate in a Little Rock jail. To Ken Starr, the Henleys are the political equivalent of Rumpole’s larcenous Timson family, but Mark and I are awed by their mutual love and loyalty, tempered by years of legal persecution. We ask what they’ll do if Susan wins. Bill answers, “I don’t really know. It would be the first morning in five years that I got up and did not face a trial.”
We hope they can survive acquittal.
April 9
Something’s up at the Court House, and it doesn’t sound good. We all rush down in the morning. Seems a juror brought a law book with him to the jury room. He turns out to be Michael Nance, someone that Mark believes is likely to take Susan’s side. The prosecution is outraged and wants him yanked, leaving 11 jurors to decide the case. Mark threatens to ask for a mistrial, but this is really the last thing Susan wants.
We wait in our seats while the lawyers and judge wangle in chambers. Mark appears every once in a while to update us. He’s not optimistic.
The plot thickens around noon: The offending law book (devoted to Arkansas state rules and thus irrelevant in a federal trial) belongs to former State Supreme Court Justice John Purtle. He is an outspoken critic of Starr, and the OIC smells a conspiracy to suborn the jury. Judge Howard sends federal marshals to track down Purtle. They find him fishing in Toad Suck, Arkansas. Toad Suck?! “Y’all never heard of Toad Suck?” the court ladies ask. “They call it that ’cause they just sit around drinking beer till they swell up like toads. Don’t know why they’re sending investigators there. The only case they’re gonna find in Toad Suck is a case of beer.” (I swear I’m not making this up.)
Later, Judge Purtle is retrieved, and he explains that he had sold his house to Nance three years earlier. He must have left some books behind, and Nance found them. Judge Howard is satisfied and lets Nance stay on the jury, with the admonishment that he is not to do any more freelance legal research. Deliberations are postponed until Monday, which means we’ll miss the verdict. We have to return to Seattle via a weekend visit to my parents in Arizona.
Susan and Pat decide to fly to Los Angeles with Mark, where the local bar is to honor him as “Trial Lawyer of the Year.” Hugs and kisses at the hotel. We plan an elegant meal in the hotel restaurant for our last night, but instead we fall in with Bill, Jill, CNN correspondent Bob Franken, and assorted ne’er-do-wells. We form a movable conspiracy in search of a restaurant open after 10pm, but this takes a court order. We settle for pizza.
April 13
Back in Seattle early Monday afternoon the 12th. The phone is ringing. It’s Donna Gogerty (a McDougal supporter with husband Bob): “Have you heard the news? They acquitted her on obstruction and hung on the rest.” It turns out that seven of the 12 held out for acquittal on contempt, making a retrial very unlikely. Could the whole fiasco finally, at long last, be over?
An hour later, Susan Weber Wright, the judge who presided over the Whitewater grand jury and sent Susan to jail, cites President Clinton for “civil contempt.”
