Two days after a McCreary County jury found Toby Curry guilty of using his cell phone to text a minor to procure sex, his attorney has filed a motion to have the verdict overturned and a new trial set.
A motion filed last Thursday by Curry’s Attorney David Cross asks for a new trial to be set due to two jurors having a prior relationship with the victim and that the jury apparently having difficulty coming to a unanimous verdict after deliberations.
(The copy of the original motion was unavailable to the public after it had been sealed due to containing the names of the jurors in question. The Court has asked the motion to be resubmitted with the names redacted and replaced with the juror’s numbers.)
The Commonwealth’s response refutes those claims and asks the Court to overturn the motion.
Apparently one of the main contentions listed by the defense as grounds for a new trial is the fact that two jury members allegedly did not disclose they were Facebook friends with the victim at the time of the trial.
The Commonwealth disputes that assertion, noting social media friendships “are hardly the kind of close, intimate relationships which it would be improper for jurors to have with witnesses in a trial.”
The response further goes on to cite Court precedent supporting that defense.
The second point of contention stems from the jury unable to come to a consensus after about an hour of deliberations. The jury sent Judge Dan Ballou a note informing him of the difficulty, to which he apparently asked them to deliberate a little longer in an effort to reach a unanimous decision.
The defense apparently argued that the instruction to continue deliberations was an act to pressure the jury into reaching a verdict.
The Commonwealth’s response argues that the Judge’s actions were not an attempt to force the jury into a decision one way or another.
“The Court, by instructing the jurors to continue to do their duty after such a short time deliberating is hardly pressuring them to betray their consciences and reach a verdict at any cost,” the response states.
An evidentiary hearing has been scheduled for August 31 at 11:00 a.m. on the matter.
At the same hearing Judge Ballou issued an order amending the bond on Curry on Thursday, July 21 – reinstating the original bond and releasing him from custody in the Laurel County Detention Center.
At the close of the trial Cross argued for the Judge to reinstate the bond and not remand his client in to custody prior to the sentencing hearing, originally scheduled for August 22.