by Robert Herold
In Judge Edward Shea's recent decision to move the River Park Square case to the Tri-Cities, he gave Prudential Securities what it wanted but he has denied Spokane what it needed. Prudential Securities, a key defendant in the case and the firm that underwrote the bonds related to the failing public-private parking garage attached to the downtown mall, feared it would be cast as the villain if the trial wound up in Spokane. Perhaps Shea, who lives in the Tri-Cities, wanted to sleep in his own bed during the six-week trial; more likely, he simply wanted to eliminate any grounds for appeal. Whatever the reason, his decision will lead to less healing on an issue that has plagued Spokane for more than seven years.
While Prudential may come out ahead, newsgathering organizations interested in relaying the events of the trial to interested citizens have been crippled. It's likely that Shea's decision will mean even less coverage of an issue that has long been hard to pull out of the shadows. And less coverage serves the desires of another defendant, the Cowles family, as lots of bad publicity is expected to emanate from that courtroom in April.
Shea's decision was largely based on a report written by one Jo Ann Livingston, who works for a Chicago-based "venue-consulting firm" and was hired by Prudential. Livingston concluded that "it will be very difficult to empanel 12 fair and impartial jurors in this lawsuit in federal court in Spokane, given the publicity about this case and the opinions expressed in the venue about the fact that the City of Spokane is involved."
Livingston's analysis was based on a survey administered by telephone and via the Internet. In all, 485 jury-qualified residents from Spokane County were surveyed and 373 from the Tri-Cities area. In addition, she read copies of newspaper articles about the case. She extrapolates from her data a long list of dubious conclusions. Most important, she concludes that too many prospective Spokane jurors: 1. Believe they would be personally affected if Spokane were to lose; 2. Are familiar with the RPS project (46 percent); 3. Have formed an opinion about who was responsible (38 percent). (Most of these respondents answered that they hoped the winners would be, in order, the city, the taxpayers and the plaintiffs; she claims 10 percent answered "Anyone but the Cowles.")
To begin with, under this rationale, any case, criminal or civil, could be moved if it had been covered at all in the media. And as for this jury "study," there are so many holes in it that one hardly knows where to begin. Can we not agree that the numbers of people reporting "knowledge of the project" are out of hand inflated? I'm actually surprised that the percentage was only 46 percent. But I'm even more surprised that anyone would conclude that what is claimed as "knowledge" is anything but impression. This case is far more complex than anyone surveyed understands at this stage. If pushed, I'd bet most of the "knowledge" respondents would reduce the case to the City versus the Cowles (which it is not). A few more might add Walker Parking Consultants. Maybe a fraction would have heard something about the bond lawyers being involved somehow. How many do you suppose know anything at all about Prudential Securities?
Yes, to understand the case you have to know about all these sub-controversies -- and if you do, you have a fix on the tip of the iceberg. To plumb its actual size and shape is the very reason we have trials.
As for those prejudicial attitudes, again Livingston's flat analysis misses the mark by a mile or so. This issue has been polarizing, no doubt about that. Two mayors have been voted out of office over it (but then Spokane has been voting out mayors since 1980). And people do have preconceived notions. But given the aforementioned complexity, so what? Once the evidence is presented, there's no doubt that the jury will be overwhelmed by all the ambiguity, moral and legal, that surrounds this case. And they'll grapple with it as best they can. Guided by a judge's instructions, that's what jurors do.
Finally, Livingston asserts that the extensive press coverage has polluted the atmosphere. What extensive press coverage?
To the contrary, this case, which is considered national news in securities law circles and is the source of articles in Bond Buyer, has all but been buried in the Spokesman-Review for going on seven years now. Even the article announcing the venue change was not to be found on the front page, where you could read full coverage of the Metropolitan Mortgage meltdown. Instead, you read about it inside the local section.
The nature of the case is also important. The coverage that there has been, in both the S-R and here in The Inlander, has been more sporadic over the past three years, as the controversy has died down. There are those who follow the story closely and will read anything written about it, but I'd estimate that the average newspaper consumer may have come into contact with in-depth River Park Square coverage just a few times over the past four years. Apparently that's enough to taint a jury pool.
Could all the defendants receive a fair trial in Spokane? Of course they could -- and they should. Moreover, Spokane needs to hear, see and feel this trial so that the mysteries and rumors that have plagued the community might finally be explained. I'm not calling for a circus - just a trial held in the light of day. Now it appears that won't happen.
In the parlance of pop psychology, Spokane needs closure on this issue. Many were looking to this trial as the closest thing the city could get to finality. Judge Shea's ruling, however, has made justice seem more remote, leaving that all-too familiar feel of controversy close to home.
Publication date: 02/12/04