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Harmony of jurors turned to discord, then deadlock
Holdout: The panel in the high-profile federal aloe vera case got along well, like good friends, until it came time to reach a verdict.

By Gail Gibson
Sun Staff

Heading into the windowless room for deliberations, foreman Mark Bartholomew expected little trouble reaching a verdict.

After all, if ever 12 people thrown together for jury duty seemed to get along, this was the group.

In the 11 weeks spent together for the case of the United States vs. Allen J. Hoffman, they had traded stories about kids and spouses. A boast about chili recipes had turned Tuesday lunches into elaborate pot-luck meals. There were plans for a reunion and a group photo to mark the unlikely friendships forged in the jury box of Courtroom 3C in Baltimore's federal courthouse.

By the end of the trial, there also was a general sense among the jurors that Hoffman, accused of fraudulently promoting aloe vera as a treatment for cancer and AIDS, was guilty.

"Cut and dry" was how Bartholomew summed up the case, one of the first in the nation to target alternative medicine.

But six days after the jurors filed out to deliberate, Hoffman left court a free man.

The jury had one other distinction. It had a holdout.

One juror had caused a mistrial, forcing frustrated prosecutors to plan for a costly retrial next year. One juror kept a defendant from a probable jail term in a case that federal authorities believed had national implications for the millions of Americans using nontraditional remedies.

Of all courtroom dramas, jury deliberations typically are the most private. But in interviews after Hoffman's trial, members of the deadlocked group offered a look inside their jury room.

Behind the closed doors, the jurors debated and cajoled and mapped out exacting timelines. Gathered around a table piled with evidence and bags of junk food, they faced the demands of a court system that requires unanimous agreement for a verdict and struggled through the emotional ups and downs of trying to reach one.

Inside the small, white-walled room, there were moments of anger and reconciliation. There were brief breakthroughs and impossible barriers. There was the group's pressure to find one answer.

And there was Juror No. 2, who wouldn't go along.

Rather be elsewhere

At the start, they bonded over one thing: None of them really wanted to be there.

"When you tell people you're going [on jury duty], everyone says, 'Oh, say this and you can get out of it,'" said Lisabeth Little, who left behind a heap of undone yard work at her Howard County home when she was called to Baltimore's federal court building in early April.

Judy Howard, facing a commute of at least 130 miles from her home in Pocomoke City, sure didn't want to be picked. Jackie Gordon was scheduled for eye surgery. Richard Mosley knew he would have to juggle jury duty with his regular job.

And at the start, U.S. District Judge William M. Nickerson made it clear that this group was in for the long haul.

The case against Hoffman, his Baltimore business called T-Up Inc., and Oklahoma aloe farmer Odus Hennessee was expected to last two to three months, with weeks of painstaking scientific and medical testimony.

"There was a lot of grumbling at first," said Gordon, 52, a retired Defense Department worker who lives near Ellicott City.

"But we all grumbled together," said Little, a retired home economics teacher who described herself as the "grandmother of the crowd."

The jury included seven women and five men. Most were professionals or retired from professional careers. Most were serving on a jury for the first time.

Bartholomew, 43, a career White House employee and an outdoor adventure guide in his spare time, said they bonded quickly.

Within the first week, jurors were swapping pictures of their kids and pets. Later came the chili cook-off between Bartholomew and alternate juror Jeff Wright, a commercial pilot, to settle whose fiery dish was better.

That led to the Tuesday lunches, with jurors bringing in everything from stuffed cabbage to lasagna to chocolate pie. Then came the reunion plans. When the two alternates were released just before deliberations, other jurors promised to call when they reached a verdict.

Alternative medicine

The case that brought them together was a high-profile prosecution that raised fundamental questions about regulating alternative medicine.

Hoffman, 53, was charged with violating the federal Food, Drug and Cosmetic Act by marketing his aloe vera product T-Up as a new drug without proper testing. Along with the other defendants, he also faced charges of mail fraud, wire fraud and conspiracy.

Promotional brochures told customers, "There is Hope - You Do Not Have to Die" and included accounts of cancer patients who drank aloe vera. Hoffman maintained that he had done nothing wrong and marketed T-Up only as a dietary supplement, not as a drug or cancer cure.

The distinction was important. Under a law passed by Congress in 1994, that meant the product was largely exempt from the scrutiny applied to pharmaceutical drugs.

Hoffman told the jury during two days on the witness stand that he couldn't be guilty of fraud because he believed that the aloe juice could significantly improve the immune systems and turn around the fates of people with terminal diseases.

The former lab technician and medical equipment salesman began T-Up Inc. in 1995, operating from a small office in downtown Baltimore.

When gravely ill customers asked what they could try beyond the aloe juice, Hoffman sometimes suggested intravenous injections of aloe vera, according to trial testimony and court papers.

Patients paid $12,000 and more for the procedure, which is illegal in the United States, hoping to find a cure that traditional medicine had missed.

Investigators started looking at T-Up after the deaths of three people who had received aloe injections at the Manassas, Va., office of Dr. Donald L. MacNay, who had worked with Hoffman.

In June 1999, a federal grand jury in Baltimore indicted Hoffman, MacNay, T-Up Inc. and Hennessee, whose farm business supplied the aloe.

None of them was charged in the cancer patients' deaths. Instead, prosecutors pursued a fraud case against the business, which took in $2.3 million from 1996 to 1998, selling T-Up to more than 3,000 people across the country.

In March, MacNay pleaded guilty to mail fraud and promoting an unapproved new drug.

The other defendants wanted their day in court.

Regular lives on hold

The jury was seated April 4. For the next 11 weeks, their regular lives on hold, the jurors were immersed in the world of alternative medicine and the federal courts.

They heard the accounts of the sick and dying who turned to the aloe treatment. Witnesses for the government told of dashed hopes and thousands of dollars spent. Witnesses for Hoffman told how the treatment had saved them.

As the trial ground on, it wore on the jurors.

Much of the testimony was emotionally wrenching, jurors said. Away from the courthouse, work piled up at their jobs. Debbie Bezold, a second-grade teacher in Montgomery County, was missing the spring semester.

Bartholomew had waiting for him the big task of helping oversee the electronic transition team at the White House.

Howard couldn't even go home each night. Every Monday, she left her home on the Eastern Shore to catch a 6:40 a.m. commuter flight to Baltimore. She stayed three nights at the Days Inn hotel near the courthouse. The trial took a break each Friday, and she flew home on a 7:50 p.m. flight every Thursday.

The court covered the cost of her commute. Still, she said, "it was awful. Nobody can imagine."

On Tuesday, June 6, the end was in sight. After closing arguments, Nickerson read jurors their final instructions. That afternoon, they filed back to the jury room.

This shouldn't be too hard, most of the jurors thought.

Mosley wasn't so sure.

Throughout the trial, Mosley, 48, had come to court neatly dressed in a suit or sports coat. As juror No. 2, he sat in the front row of the jury box. He took more than 140 pages of notes.

As with the others, jury duty had strained his regular life. A transportation director for Bon Secours Hospital in West Baltimore, Mosley would go into the office after court ended about 4:30 p.m. and all day on Fridays.

Like the others, Mosley had been impressed by the easy friendships among the jury. When it was his turn to bring the main course for a Tuesday lunch, he showed up with a pan of thick crab cakes.

But the camaraderie quickly cooled when Mosley told the group on their first full day of deliberations that he didn't think he could vote to convict.

Mosley knew the system from previous jobs as a jail officer and as a pretrial investigator for the city courts. He considered the evidence. He weighed the testimony.

He remembered the judge's instructions: Don't be swayed by sympathies to either side. ... Good faith is an absolute defense.

"To me, the government didn't prove to me that he intended to commit fraud or that he acted in bad faith," Mosley said.

Details of the case nagged at him. According to testimony, 27 patients went to MacNay's clinic to receive injections of T-Up. But jurors heard testimony about only seven.

"You make the inference that the other 20 came out OK," said Mosley, who wasn't convinced that the aloe treatments caused the deaths of patients who were seriously ill.

And Mosley was unimpressed by what prosecutors saw as a key to the fraud charges, that Hoffman had little education and few credentials to back his claims.

According to testimony, Hoffman regularly called himself "Dr. Hoffman," although his only claim to the title was a doctorate certificate he had paid $500 for.

Prosecutors also questioned Hoffman's junior college degree and his work as an Army lab technician, when he earned his high school equivalency diploma.

Mosley wasn't swayed. He had served four years in the Army during Vietnam, and most of his education and training had come on the job, from everyday work and experiences, much like Hoffman's.

Rush to judgment?

Less than a day into deliberations, the jurors sent a warning note to Nickerson.

"If any juror believes Hoffman really did act in good faith, where does that leave us as a jury?"

Keep trying to reach a verdict, Nickerson told them.

In the jury room, several of the panel's members were annoyed by what they saw as Mosley's rush to judgment, a charge Mosley leveled at them.

"He had made up his mind before we started deliberating," Little said. "It was like, 'Well, why did we go through all this?'"

"Rick, at least listen to us," Bartholomew recalled that the group said. "Let us work through each of the counts and see if you still feel that way."

And so they began.

On the jury room walls, next to framed posters from the National Aquarium in Baltimore, they taped up giant sheets of paper to create a detailed timeline. They made a color-coded chart that listed each of the defendants, all of the charges and evidence.

The group quickly decided that Hennessee, the Oklahoma farmer, should be acquitted. Then they turned their attention to Hoffman.

They sifted through the evidence and talked about witnesses. Gradually, it became clear that most of the group would vote to convict. After spending two months on the case, they wanted to reach a verdict.

For that, they needed Mosley.

"At first we thought, we'll go through and we'll change his mind," said Alan Carpenter, 27, a customer service representative for Office Depot. "And we'd think we were getting somewhere, but we just weren't."

On the fifth day, the jury took a different approach.

In an effort to find common ground, Bartholomew suggested paring down the evidence. "There was such a substantial amount of evidence that was hard evidence, that we didn't need to go back to any of the anecdotal evidence," he said.

OK, Mosley said. The evidence exists. These things did happen.

To the others, it was a hopeful sign. They took a break to eat lunch, thinking they were about to reach agreement.

But after lunch, Mosley explained his thinking. These things might have happened, he said, but none of it proved that Hoffman had acted in "bad faith."

"Everything came to a screeching halt again," Bartholomew said. "And you could hear it. No one was breathing."

Frustrations boil over

The next morning, after five tense days of negotiations, the simmering frustrations spilled out of the jury room.

Feeling pressure, Mosley wrote an unusual note to Nickerson about the deliberations.

In the one-page note, Mosley said he had considered the evidence and shared his views. As a result, Mosley wrote, he had been accused of contempt of court. One juror suggested he was ignorant or lacked common sense. Others asked whether he had an "ax to grind with the government."

"I am at the point now where I believe if I don't go along, I will continue to be isolated and insulted," Mosley wrote. "I don't believe that this is the intent of the court."

Outside the jury room, the note set off a commotion.

Defense attorneys called for a mistrial, saying one juror was being coerced. Prosecutors said the jurors should keep trying to reach a verdict.

Before those issues could be resolved, another note arrived.

This one was signed by the foreman. It began, "Re: Juror No. 2."

The note said one member was not fully participating. Juror No. 2, the note said, "has maintained everyone charged by the government is innocent, and nothing we can say can change his mind."

The other jurors didn't know about Mosley's note.

He didn't know about theirs.

When both sides realized what was happening, any chance for a unanimous agreement collapsed. The jury took its final vote.

On one count of mail fraud, the group voted to acquit Hoffman.

On the first conspiracy charge, the group split 9-3 to convict.

On the remaining 18 counts, the group deadlocked, 11-1.

Hung juries are rare

There are about 170,000 jury trials each year in the United States, 8,500 of them in federal courts.

G. Thomas Munsterman, director of the Virginia-based Center for Jury Studies, said that means roughly 1.7 million people a year serve on juries, fewer than 100,000 of them in federal court.

Most of them reach verdicts.

From 1980 to 1999, 2 percent to 3 percent of federal criminal trials resulted in hung juries.

The jury in Courtroom 3C wasn't happy to be part of that statistic.

After reading their decision aloud that last day, most of the jurors went as a group to Nickerson's chambers to vent their frustrations. Mosley briefly stepped in, too. There was an awkward silence. Then Mosley spoke.

"It is possible," he said to Nickerson, "for a person to hear the same evidence you heard, to see the same things you did and come away with a different conclusion than you did." With that, he left.

The rest of the group stopped in a courthouse hallway to shake hands with a grateful Hennessee. And they headed upstairs to the U.S. attorney's offices to offer their insight to the prosecutors who plan to retry Hoffman, a trial now scheduled for April 2001.

They vowed to keep in touch, and they did.

In phone calls and e-mail chats, they reviewed the trial and the news coverage of it. Plans for a group photo in the courtroom fell apart, but they went ahead with the reunion.

It was Aug. 5 at alternate juror Wright's Frederick County home. There were steamed crabs, a roasted pig and picnic tables loaded with salads and sweets. The invitations read, "Let's go over the evidence once more." The tables on Wright's deck were decorated with small aloe plants.

It was a chance to catch up since they had returned to their normal lives, to summer vacations, to work, even to a liver donor operation in the case of juror Chris Burkhardt. It was a chance to again puzzle over why a group this close couldn't close the case.

In the weeks after the trial, they had each shared their frustrations.

"It was terrible that it came to that," Howard said after she had returned to Pocomoke City and her part-time job as a church secretary. "I really though we'd be able to reach a conclusion."

"To think they have to go through all this again," said juror Elva Williams, retired after 31 years in the Baltimore school system. "This is taxpayer money, and I'm a taxpayer, and I resent it."

"That's the jury system," said Bartholomew. "It's served us pretty well. I don't think it made people happy. But I think they understood."

At the reunion, Little got the biggest laugh when she pulled out an envelope she had received that day in the mail.

It was a jury summons to Howard County Circuit Court.

The group groaned. But among the 12 jurors and two alternates who sat through the entire aloe case, all but one said they would serve with few reservations if they are called again.

Mosley isn't so sure.

He didn't go to the jury reunion. He said he didn't see the point. Other jurors said they decided against sending him an invitation reminding him about the plans made at the courthouse before deliberations.

The only call Mosley made after the trial was to attorney Michael Marr, who represented Hoffman. The conversation was a warm one, Mosley said, assuring him he had done the right thing.

"The only thing I ever thought about is, I don't know this guy from Adam. Why did I take myself through this?" Mosley said on a rainy afternoon about a month after the trial. "And the only thing I could come up with is because this was right."

The case has stayed with him, just as it has for the others. In a wallet-sized notebook, he carries a folded slip of paper on which he had listed his 10 reservations about convicting Hoffman that formed his reasonable doubt. He still has those 140 pages of notes, stuffed into a plastic grocery bag.

If called again for jury duty, Mosley said, he would do everything he could to get out of it.

"It showed me how people can work up until a certain point, and then, everything unravels," he said.

Originally published Aug 13 2000

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