A WIN BY SPLIT DECISION

By STEVE WULF/NEW YORK

AT ONE POINT DURING THE DEFENSE summation in the U.S. District Court wire-fraud proceedings against boxing promoter Don King, his premier fighter, the convicted rapist Mike Tyson, could be seen dozing off on a bench in the back of the New York City courtroom, holding a book of essays by Leo Tolstoy: What Is Art? At the time, Dostoyevsky's Crime and Punishment seemed a better choice: the prosecution had called 18 witnesses to back up its claim that King falsified a contract to collect $350,000 from Lloyd's of London for a canceled fight in 1991, and the defense had called only the evasive King.

But the nearly six-week trial turned out to be every bit as tangled and outrageous and bizarre as the defendant's coiffure. Last Friday the government announced it was withdrawing its appeal of the mistrial ruling made the day before by U.S. District Judge Lawrence McKenna. The judge had declared the mistrial because the jury informed him it was hopelessly deadlocked--after only five hours of actual deliberation. It seems that one of the jurors had a plane to catch to South Africa on Friday, with a nonrefundable ticket. King, 64, who has survived a 1985 tax-evasion case, three grand jury probes and an fbi sting, had wriggled off the hook again, possibly because of airline pricing policies. "The champion will retain his title on a draw," declared King spokesman Mike Marley.

There may be a rematch, however. U.S. Attorney Mary Jo White of the Southern District of New York announced that the government will move to retry the case quickly, and there are indications that additional counts may be added to the nine concerning the contract for the 1991 fight between Julio Cesar Chavez and Harold Brazier. Had King been found guilty on all nine counts, he would have faced a maximum of five years in prison and a $2.25 million fine.

But one of the problems with the original case was the confusing nature of the alleged insurance fraud, which centered on a fight that had to be canceled when Chavez cut his nose in training. The government's star witness, former Don King Productions accountant Joseph Maffia, testified that King told him to alter a contract to show that Chavez had received $350,000 in training fees, and Chavez testified through an interpreter that he had never been given that money. Maffia's careful, measured testimony was somewhat compromised when the defense played a tape of an angry Maffia telling King over the phone, "I'm gonna kick your ass." On the other hand, King's assertion that he knew nothing about the alteration seemed disingenuous after his employees testified that their boss insisted on signing every check, some for as little as 5-c-.

On the day the mistrial was declared, one of the alternate jurors in the case told Alex Michelini of the Daily News that she didn't know whom to believe--King, who "couldn't have been telling the whole truth," or Maffia, who "had it in for Don." The alternate also revealed that she had discussed the case with two of the regular jurors, one of whom is an attorney, on a subway ride home earlier in the week--an apparent violation of court instructions not to discuss deliberations. That alone would have been grounds for a mistrial, according to lead prosecutor Paul Gardephe. It was an interesting jury, to say the least. Because laughter could often be heard behind the heavy mahogany doors of the jury room, journalists had assumed the panel was harmonious. But as it turned out, the jurors were split almost down the middle, with six for conviction, five for acquittal and one undecided. The laughter, it seems, erupted over games of charades.

This was not the first time King had been lucky with a New York City jury. In the 1985 tax-evasion case, the promoter got off scot-free while one of his loyal female employees took the fall. According to Jack Newfield's biography Only in America: The Life and Crimes of Don King, King flew most of those jurors to London for the Tim Witherspoon--Frank Bruno heavyweight title bout eight months after the trial and put them up in a luxury hotel, burying the expenses as part of the fight's promotion.

Though the latest trial for King was not resolved one way or the other, at least Peter Fleming, his eminent defense attorney, provided an answer to the question once asked by one of Tyson's favorite authors, namely, What is art? Art is the stately former Assistant U.S. Attorney telling reporters gathered outside the courthouse last Friday morning that there was no man in the world for whom he had more respect and admiration than Don King. "He is an enormously strong man, a man of decency, and I think the world should know it," said Fleming, who had actually summoned up tears during his closing arguments. Asked where his client was going that morning, Fleming said, "Don is going to church."

There are some people, however, who have another destination in mind for King.

--With reporting by Georgia Harbison/New York

With reporting by Georgia Harbison/New York