Teacher convicted of molesting student gets new trial

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

A judge during November ordered a new trial for a former Onondaga Indian Nation music teacher convicted of molesting one of his students.

Onondaga County Judge William Walsh set aside Albert Scerbo’s conviction, concluding that jury deliberations were improperly influenced by comments made by two jurors with professional backgrounds in education.

During the recent hearing, juror Shelly McGraw testified that she was influenced by the two educators – one a teacher, the other a retired administrator – who told other members of the jury during deliberations that Scerbo had to know he was doing something wrong because teachers were trained not to touch children. Scerbo, of Clay, had been facing up to seven years in state prison after being found guilty Aug. 2 of first-degree sexual abuse and endangering the welfare of a child.

Walsh, however, denied the defense’s request to dismiss the indictment. The judge did not set a new trial date but told attorneys to return to court Nov. 26.

“We are grateful for the judge’s decision,” said defense attorney Edward Menkin. “This has been an ordeal for this man – unfortunately, it will continue.

“We said all along that this was a case built on children’s lies,” Menkin added.

Assistant District Attorney Gary Dawson could not be immediately reached for comment.

During last week’s hearing, Dawson contended that the jurors’ remarks were their personal views based on common sense, not expert opinion.

Both jurors denied that they said anything about training and testified that what they said was that in today’s society most adults would know touching a student was inappropriate.

Scerbo, a 45-year-old father of two, was acquitted of 17 other charges involving nine other young girls ranging in age from 7 to 14. The incidents allegedly took place between 2002 and 2006.

He originally 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.

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 was scheduled for sentencing Oct. 10. But on that day a local newspaper printed an interview with two of the jurors who discussed how they reached their verdict, leading to a postponement and prompting Menkin to challenge the conviction.

“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 argued in court papers.

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