Donovan Trial Proceeds With Alternate Juror

After a bitter courtroom confrontation, a judge Saturday ordered an alternate juror seated and deliberations to begin again in the marathon larceny and fraud trial of former Labor Secretary Raymond J. Donovan.

“The people and the defendants have a right to a verdict,” state Supreme Court Justice John P. Collins said after finding “ambiguous” a section of New York trial law prohibiting the substitution of jurors without the permission of defendants after a jury has started its deliberations.

“Begin again anew,” Collins told the revamped jury after instructing members of the panel to “set aside” their five previous hours of deliberating the innocence or guilt of Donovan and his co-defendants. The alternate juror had heard all the evidence at the trial but had not participated in the jury’s early deliberations.

Subway Tunnel Project

The first sitting Cabinet member indicted while in office and seven co-defendants are charged with defrauding New York City of $7.4 million in a subway tunnel construction project. The case forced Donovan’s resignation as labor secretary in 1985.

One of the jury members, Milagros Arroyo, 30, locked herself in a bathroom near the jury room Friday morning and demanded to see a priest. Later, she was carried into court, appearing agitated and quoting the Bible. Collins dismissed her. She has a 19-month-old daughter she had not seen since the jury was sequestered May 14.

Collins convened court Saturday morning more than an hour after its scheduled start and polled the defense lawyers about whether their clients would accept a substitute juror.

Six defendants said they would not. Only Donovan and one co-defendant signed consent forms for the substitute juror.

Explaining his reasons during a brief recess, the soft-spoken former member of President Reagan’s Cabinet pointed to the motto “In God We Trust” above the judge’s bench.

“I mean it in the bottom of my heart,” Donovan told reporters. “The sign above the judge is my consolation. I hold to my conviction I have committed no criminal act and the jury will acquit me.”

Donovan said his decision to allow the jury to continue considering his fate was difficult. “I prayed about it,” he said. “I consulted with my family last night. I’ve decided we have to have confidence in our system.”

But his decision quickly became moot. A few minutes later, Collins announced his ruling. The state Supreme Court justice refused to grant a mistrial to any of the defendants. He also refused to allow the jury to consider only Donovan and Gennaro Ligouri, the co-defendant who also had signed the waiver.

‘Jury Had Barely Begun’

After citing the appropriate section of New York’s criminal law and finding it ambiguous, the judge announced that the jury would weigh the fates of all the defendants.

“It is evident the jury had barely begun to deliberate. . . . The court is satisfied in light of the circumstances of this case that these 12 jurors will render a verdict,” Collins ruled. “The alternate will be seated.

“The court finds no violation of the common law 12-man jury, and deliberations having been minimal at most, the trial will proceed. Deliberations will continue.”

A storm of protest from all of the defense lawyers followed the judge’s decision. But the most personal confrontation came from Donovan’s lawyer, William Bittman. Standing in front of a table in the dimly lit courtroom, his protest periodically interrupted by the roar of airplanes on their way to land at La Guardia Airport, Bittman berated the judge--who grew increasingly red-faced.

‘Feel Like a Fool’

“I have to state the following,” Bittman said. “In my career I have never been deceived by the court. I believe what happened here was an intentional deception on me and my client. . . . I feel like a fool.”

Bittman accused Collins of allowing Donovan to sign the waiver after the judge knew that he would rule that the jury would consider the cases of all the defendants. “I believe I have been patently deceived,” the lawyer charged, asking that Donovan’s consent be withdrawn.

“Application denied,” Collins said.

Earlier in the session, in agreeing to seat the substitute, Bittman had told Collins: “It is my feeling Mr. Donovan cannot be convicted.”

But Collins later said he had the right to ask if any of the defendants would consent to an alternate juror and then to decide what to do about those who would not agree.

“Your rights have been preserved,” he told Bittman.

Jurors Questioned

Collins asked the new juror and the regular jurors whether they could deliberate fairly and impartially. All said they could.

After the jury had left the courtroom to start its new deliberations, Donovan commented on the proceedings. “I feel we’re in Disneyland North,” he said.

Donovan, an executive of the Schiavone Construction Co. of Secaucus, N.J., at the time of the alleged offenses, and the other defendants--including a New York state senator--were charged with setting up a bogus minority-owned subcontractor as a front to qualify for the subway contract. The prosecution charged that the arrangement was a “sweetheart deal” intended to hoodwink the New York City Transit Authority.