By Jim O’Hara
Onondaga County Judge William Walsh Friday set aside the sex abuse conviction of Onondaga Nation School teacher Albert Scerbo based on the conduct of jurors during deliberations.
In an 11-page decision, Walsh ruled the deliberations were improperly swayed by the introduction of outside information from two jurors with professional backgrounds in teaching. That amounted to “unsworn testimony” from the jurors that was not subject to cross-examination by the defense, he noted.
The Aug. 2 verdict convicting Scerbo of first-degree sexual abuse and endangering the welfare of a child was the product of “improper influence” warranting a new trial, the judge concluded.
“Although the general notion that a teacher should refrain from unnecessary physical contact with students may fall within the realm of common sense, the question of the prerequisites and standards governing the teaching profession certainly does not,” Walsh wrote. “Consequently, the information shared with the jury by the educator-jurors went beyond mere lay opinions derived from common everyday experience. Rather, it conveyed to at least one fellow juror the impression that formal standards existed within the teaching profession that prohibited any physical contact between teachers and students, knowledge not within the ken of the ordinary juror.”
The judge concluded that even if only one juror was improperly influenced, that was sufficient grounds for setting aside the conviction.
Assistant District Attorney Gary Dawson said the prosecution would appeal. Defense lawyer Edward Menkin said he was grateful for the ruling granting a new trial, but would rather have had the judge dismiss the case altogether on a number of other legal issues.
The controversy over the jury verdict erupted last month when that issue surfaced in a story in The Post-Standard in which two jurors – David Finlay and Anthony Wright – discussed how the jury found Scerbo guilty of molesting one student in his music class.
Walsh held a hearing last week during which another juror – Shelly McGraw – claimed the two educators on the jury said teachers were specifically trained not to touch children or place children on their laps. She said that information compelled her to change her mind and vote to convict Scerbo.
The two educators – David Arkerson and Louis Chistolini – both testified at the hearing and denied claiming teachers receive any such training. They said they were unaware of such training. They both said the conversation in the jury room was in the context of common sense knowledge anyone would have in this day and age about touching a child.
Walsh noted in his written decision that he found McGraw’s testimony credible. He also said it was supported by Finlay’s testimony that the newspaper article accurately reported what he said Arkerson and Chistolini talked about in the deliberations.
The judge noted his pre-deliberation instructions to the jurors had made it clear they were not to consider any expertise gained from professional background or experience.
“The teaching profession requires specialized education and training to obtain proper certification and licensing by the state,” he wrote. “Thus, the specialized knowledge and experience gained from within the education profession is beyond that which would commonly be known to the average layperson.”
Dawson said he was disappointed by the ruling but not surprised given Walsh seemed to be leaning in that direction the day of the hearing.
Dawson said his office would make the same argument before the state Supreme Court Appellate Division in Rochester that the information discussed by the jurors was common sense knowledge.
The prosecution had submitted affidavits to Walsh after the hearing in which four other jurors said the conversation about what a teacher should know was in the context of common sense knowledge.
That, however, did not sway the judge.
Menkin said the case remains a “terrible ordeal” for Scerbo, 45, of Clay, who has been separated from his wife and children as a result of the sex abuse allegations.
The situation is not expected to change anytime soon, Menkin said, noting he suspected it would be six to eight months before the case can be retried if the appellate court upholds Walsh’s ruling. The prosecution also is seeking to have the appellate court reinstate several other charges Walsh dismissed before trial.
Jim O’Hara can be reached at firstname.lastname@example.org or 470-2260.