Scerbo seeks retrial, says jurors added own info

Tuesday, October 30, 2007
By Michele Reaves And Jim O'Hara
Staff writers Post Standard

A lawyer for an Onondaga Nation School teacher claims his client was wrongly convicted of sexual abuse by a jury that considered the professional expertise of two of its members.

The two jurors, who were educators, told the other men and women that Albert Scerbo had to know he was doing something wrong because teachers are trained not to touch children, juror David Finlay said in an Oct. 10 Post-Standard article.

Neither the prosecution nor the defense brought up teacher training and standards of behavior during the trial, attorney Edward Z. Menkin wrote in a motion to Onondaga County Court Judge William Walsh.
The educators' comments in the jury room were an "un-examined, un-confronted introduction of 'evidence,' " Menkin wrote. Since it was not brought up at trial, Scerbo could not challenge the information, Menkin said. Therefore, he said his client did not have a fair trial.

Three previous local cases where a juror introduced evidence during deliberations ended in a mistrial or an overturned conviction. The state's highest court, the Court of Appeals, in a 2001 ruling discouraged jurors from introducing information not included at trial.

Menkin asked Walsh to set aside the guilty verdict and give Scerbo a new trial.
The jury convicted Scerbo, 45, of Clay, of first-degree sexual abuse and endangering the welfare of a child on Aug. 2. They found him not guilty of 17 charges involving nine other girls.

Menkin identified the jury foreman, David Arkerson, as "a teacher in the Solvay school district." He identified the other educator only as "Juror Chistolini . . . a retired school administrator," the motion stated.

The lawyer also submitted an affidavit from a third juror, whose name he redacted, confirming the presence of two educators on the jury. The juror said the educators' statements influenced the jury.

"There is no doubt in my mind whatsoever that these statements had a very significant effect and impact upon the jury's deliberation and eventual guilty verdict," the juror said in the statement. "I specifically recall the female juror sitting next to me commenting . . . that 'Think about it (redacted). We have two teachers sitting right here and if this is what they were taught I have to go with them.' "

Menkin did not mention anything said by juror Anthony Wright, who was also interviewed for the Oct. 10 story. Wright also told The Post-Standard that two teachers on the jury said Scerbo should have known he was doing something wrong because of the training teachers receive.

State guidelines about appropriate physical contact between students and school personnel don't exist, Anthony Bottar, a member of the New York State Board of Regents, told The Post-Standard in August.

Attempts to reach Chistolini and Arkerson were unsuccessful. Finlay also could not be reached.

Assistant District Attorney Gary Dawson said his response to the motion would be filed by today.

County Judge Anthony Aloi faced a similar issue in 2001. He declared a mistrial in Telito Keller's case when a juror obtained confidential patient information and shared it during deliberations.

Keller was accused of gunning down 17-year-old Mark Harris Jr. The juror, a nurse at University Hospital where Harris died, shared the victim's condition upon admission to the hospital the day of the shooting. Another juror mentioned the information to an alternate juror, who reported it to the court.

Aloi questioned each juror and decided not to let deliberations proceed. Keller pleaded guilty to manslaughter and was sentenced to 16 years in state prison.
In a 1990 case, a juror alerted Supreme Court Justice Walter Gorman that the jury foreman researched drug and cocaine intoxication at the public library and shared his findings with other jurors.

The jurors had convicted Charles Ray Thomas of murdering and sodomizing and trying to rape Syracuse University graduate student Sayuri Watanabe in her off-campus apartment.

Gorman let the verdict stand after interviewing each juror, all of whom said they had not been influenced by the foreman's research. But the verdict was overturned in state Supreme Court Appellate Division in Rochester in 1992. That court found that Thomas was denied a fair trial because the foreman's research unfairly bolstered the prosecution's case.

Thomas pleaded guilty in 1993 and was sentenced to 20 years to life in prison. He had been serving a sentence of 44 1/3 years to life in prison.
The appellate court also overturned the 1991 drug-sale conviction of Alfred Dashnau based on juror conduct.

A juror checked the phone book to see if Dashnau's lawyer was a Legal Aid lawyer. The juror decided Dashnau hired the attorney and used drug proceeds to pay counsel. The lawyer actually was an Assigned Counsel lawyer.

County Judge William Burke questioned all the jurors but decided they were not prejudiced by the information. The appellate court in Rochester concluded otherwise, overturning Dashnau's conviction in 1992.

Michele Reaves can be reached at mreaves@syracuse.com or 470-3198.