Wednesday, December 28, 2011

Cattaraugus County - Appeals court orders new trial because of improper jury conduct

A man convicted in Cattaraugus County court of sexually abusing a child is entitled to a new trial because two jurors improperly offered their professional opinions on child psychology during deliberations, a state appeals court has ruled.
Reversing the trial court, the Appellate Division, Fourth Department, found that two jurors who work with abused children prejudiced Timothy Jerge's "substantial rights" to a fair trial when they explained the psychology of young victims of sexual abuse to their fellow jurors. One of the jurors was a social worker, and the other was a licensed substance abuse and mental health counselor.
"The subject jurors offered improper professional opinions that were not the subject of expert testimony and were not subject to cross-examination, thereby depriving (Jerge) of a fair trial," the court wrote in a 4-1 ruling released on Friday.
Following a three-day jury trial, Jerge was convicted of second-degree sexual abuse and related charges for having sex with a child under the age of 13 over a five-year period. In March, he was sentenced to seven years in prison.
Jerge moved to set aside his conviction, arguing that the jurors' statements improperly influenced the verdict and violated his right to cross-examine expert witnesses.
During a hearing on the motion, two jurors testified that during deliberations, questions arose about the lack of physical evidence and the conduct of the alleged victim, who continued to have a relationship with Jerge while the abuse was taking place. In response, according to the ruling, the jurors said the social worker and substance abuse counselor made statements such as, "We deal with this every day," and "this is the pattern of how these things normally take place."
In March, Cattaraugus County Judge Larry Himelein held that Jerge did not show how the jurors' conduct impacted his right to a fair trial. Himelein said it was "common knowledge" that children often continue to have relationships with abusers.
The Fourth Department disagreed.
"The behavior and response of a victim of sexual abuse is 'not within the common ken of juror experience and knowledge,'" the panel wrote.
The panel cited People v. Maragh, a 2000 case in which the Court of Appeals held that "a grave potential for prejudice" arises when jurors offer their professional opinions of a case during deliberations. The Maragh Court created a three-point test for determining whether such misconduct constituted reversible error. To warrant a reversal, a juror's assessment of a case must be beyond the understanding of an average person, concern a material issue in the trial and be communicated to fellow jurors "with the force of private, untested truth as though it were evidence."
The Fourth Department majority found that Jerge's case passed the Maragh test.
In dissent, Justice Eugene Fahey said that Jerge failed to show his "substantial rights" were violated.
"I cannot conclude that (Jerge) established that the second testifying juror based her verdict on something other than the evidence presented at trial," Justice Fahey wrote. "Thus, in my view, defendant did not meet his burden of showing by a preponderance of the evidence that the conduct at issue prejudiced a substantial right."
Jerge's appellate attorney, Thomas Theophilos of Buffalo, said the jurors' misconduct violated his client's rights to cross-examine witnesses under the Confrontation Clause, as well as his rights to counsel and to be present during the presentation of evidence.
"It was the equivalent of telling (Jerge) and his attorney to step outside of the courtroom during a material stage of the proceeding," he said.
"People who have expertise in a particular area that is the subject of a trial should not be on the jury," Theophilos said. "It's almost like asking someone to adopt a personality change or wipe their memories clean."
Cattaraugus County District Attorney Lori Pettit Rieman said the office planned to retry the case. She said she believed the jurors' conduct was simply a part of the normal deliberation process and did not rise to the level of misconduct.
The case is People v. Timothy Jerge, New York State Supreme Court, Appellate Division, Fourth Department
For Jerge: Thomas Theophilos
For the prosecution: Cattaraugus County District Attorney Lori Pettit Rieman

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