Defense attorney: Teacher’s conviction should be set aside

By William Kates
Syracuse, New York (AP) 11-07

Two jurors used their professional expertise to inappropriately sway the jury that convicted a former Onondaga Indian Nation music teacher of molesting one of his students, says the teacher’s defense attorney.

The two jurors were educators who told other members of the jury during deliberations that Albert Scerbo had to know he was doing something wrong because teachers are trained not to touch children, according to legal papers filed by defense attorney Edward Menkin.

“The un-examined, un-confronted introduction of `evidence’ by these `expert jurors’ behind closed doors of the jury room” deprived Scerbo of a fair trial, Menkin wrote in court papers.

Menkin asked Onondaga County Judge William Walsh to set aside Scerbo’s conviction and dismiss the indictment against him, or minimally, order a new trial.

Scerbo was convicted in August of first-degree sexual abuse and endangering the welfare of a child. Both charges involved the same victim.

The 45-year-old father of two was acquitted of 17 other charges involving nine other young girls ranging in age from 7 to 14.

During the trial, Scerbo admitted to jurors that he sometimes allowed students to sit on his lap but said he never forced them to and never received any sexual gratification from it.

Scerbo faces up to seven years in state prison. He was scheduled to be sentenced Oct. 10. But on the day of his sentencing a local newspaper printed an interview with two of the jurors, leading to a postponement.

In that article, jurors David Finlay and Anthony Wright discussed the deliberations, which lasted for 16 hours over three days. Menkin contended that the jurors’ comments contained “strong intimations of jury confusion bordering on impropriety and jury misconduct.”

Finlay told the newspaper that the jury foreman and another juror were educators who told other members of the jury that teachers were trained not to touch students. The jury foreman was a teacher in a suburban Syracuse school district while the other juror was a retired school administrator, court papers said.

Neither the prosecution nor the defense brought up teacher training and standards of behavior during the trial, Menkin said.

Another juror, in a separate affidavit submitted by Menkin, said the two 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.

Assistant District Attorney Gary Dawson said he planed to file responding papers.

Scerbo, of Clay, went to trial on 28 criminal counts involving allegations of abuse at the reservation school from Sept. 4, 2002 through Dec. 18, 2006, when he was arrested. He initially was charged with having sexual contact with two girls, ages 7 and 8. But the list of victims grew to 17 as deputies investigated the case.

He was indicted on 35 charges. Before trial, Walsh dismissed seven counts, dropping four victims from the case because of insufficient or contradictory evidence. The judge removed three more victims after listening to testimony, reducing the counts against Scerbo to 19 involving 10 victims.

Dawson has said prosecutors will appeal Walsh’s pretrial decision to dismiss four of the alleged victims.

Scerbo taught at the Onondaga school for eight years. The reservation school has about 90 pupils.