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Prosecutor calls jurors’ comments ‘common sense’

November 1, 2007 by Onondaga Nation

Assistant District Attorney Gary Dawson objects to a new trial for Albert Scerbo.

By Michele Reaves
Staff writer Post Standard

Comments made by two educators during jury deliberations are not grounds to grant an Onondaga Nation School teacher a new trial, according to a prosecutor.

If the jurors told others on the panel that Albert Scerbo knew he was doing something wrong because teachers are trained not to touch children, it was based on common sense, not “expert opinion,” Assistant District Attorney Gary Dawson wrote in his motion to Judge William Walsh.

Dawson said the jurors’ statements would have been personal opinions expressed during deliberations and would not qualify as professional testimony presented outside the trial.

“It would be completely absurd if either side in this case suggested that they require an ‘expert’ to testify to the fact that in today’s age, a teacher (or any professional working with children) is likely to be aware that putting children on his lap, much less touching them in a sexual manner, is inappropriate,” Dawson wrote.
Dawson’s motion was in response to Scerbo’s attorney Edward Z. Menkin’s request for a new trial.

Scerbo, 45, of Clay, was convicted Aug. 2 of first-degree sexual abuse and endangering the welfare of a child. The charges stemmed from contact with a now 7-year-old pupil in his music class. The jury found him not guilty of 17 charges involving nine other girls.

Dawson wrote that he did not concede to the accuracy of the Oct. 10 Post-Standard article, in which the comment from the educators was reported, and an affidavit by a third unnamed juror submitted to the court by Menkin.

Dawson also refuted Menkin’s claim of juror misconduct when jurors discussed during deliberations where they stood on reasonable doubt. He wrote that appellate courts have ruled scrutiny on the methodology a jury uses to reach a verdict is not a basis for overturning a verdict.

“Defendant’s motion should be denied in its entirety and his sentencing should go forward in accordance with the verdict as rendered,” Dawson wrote.

Scerbo could return to court Nov. 7 for a hearing, where jurors will be questioned, Dawson said. Menkin wants six jurors to testify, Dawson said. He is not sure yet whether he’ll call all of the jurors back to testify.

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