Toby Curry, who was found guilty by a McCreary County Jury last month of texting a minor with the intent to have sexual relations with the girl, may be getting a new trial.
It was discovered that two jurors who sat on the panel that convicted the former MCHS teacher may have been former students – thus calling in to question their impartiality during the trial.
Curry’s attorney David Cross had previously filed a motion to dismiss the verdict and to have a new trial based on a possible undisclosed relationship between two members of the jury and the victim of the case.
In an evidentiary hearing Wednesday afternoon, one member of that jury was called to the stand to answer questions concerning those possible connections.
The Juror stated he graduated from MCHS in 2015, but did not know the victim, but did admit he had a class under Curry’s wife, who was also a teacher at the high school.
The Juror stated he did not have Curry as an instructor, but admitted he knew who Curry was, but did not personally know him.
After the Juror was dismissed from the stand Curry’s attorneys stated the Juror was, in fact, a former student of Curry and he failed to disclose that relationship when being selected as a member of the panel.
Judge Dan Ballou did not rule on the motion for a new trial Wednesday, as the second Juror in question did not respond to the summons to appear, and the defense did not have transcripts from the high school showing the student-teacher relationship at the time.
Assistant Commonwealths Attorney Robert Stephens argued that if Curry knew the potential jurors were former students, he had an obligation to note that during the selection process, and should not be able to contest the point after conviction.
Cross argued that both the prosecution and defense asked if any potential jury member had any prior relationship, and neither juror disclosed one at the time, thus not allowing for directed questions.
Judge Ballou said he tended to agree with the defense, noting several other potential jurors used the opportunity to disclose such a relationship, and it was their obligation to do so.
Judge Ballou continued the hearing until September 13 at 9 a.m. in the Williamsburg Circuit Court, in order for the second juror to appear and the transcripts obtained.
The Judge did note, that if indeed the jurors were former students, he would be inclined to grant the motion for a new trial, and suggested a motion for a change of venue could be appropriate.