Toby Curry, The former McCreary Central High School teacher and coach convicted this past July of using text messages to entice a former student to have sex with him, will have a new trial on the charges after it was discovered that two jurors who found him guilty were former students of his at MCHS, and one had apparently heard “rumors” about the accused prior to sitting in judgment of the man.
Curry’s attorney, David Cross, filed a motion to dismiss the verdict and have a new trial shortly after the conviction, noting in the brief that two jurors may have had prior knowledge of the case, such as friendships on Facebook.
During the first evidentiary hearing two weeks ago, one of the jurors was subpoenaed to appear and testified that he did not remember having Curry as a teacher during his studies at MCHS, but did admit to knowing of him while a student.
Tuesday morning, in Williamsburg, the hearing continued with the second juror noted in the motion called to the stand.
Under questioning the juror also claimed he did not remember having Curry as a teacher at first, but after further questioning he recalled he did have a class under him.
The juror said he did know who Curry was prior to the trial, but said McCreary County was a small community and everyone knew of everyone at some point.
He also admitted to hearing “rumors” of the allegations against the former coach prior to the trial.
With the last admission Judge Ballou called a halt to the proceedings and sustained the motion to award a new trial.
The Judge was clearly upset at the revelations, stating it was the responsibility of those jurors to disclose any connection to the accused and the accuser, and in failing to do so tainted the process and failed to give Curry a fair trial.
Commonwealths Attorney Allen Trimble and Assistant Robert Stephens argued that Curry should have pointed out his former students during the selection process, instead of after the jury was sent to deliberations.
“Does he have to disclose? No,” Stephens said at one point. “But if he doesn’t, he can’t complain afterwards.”
Judge Ballou refused to accept that, noting Curry was not one asking questions during voir dire, and if the jurors did not answer the questions truthfully during the process, they basically lied.
Judge Ballou said it was “ridiculous” that the two jurors did not disclose their relationship to the Court during jury selection.
“This makes me sick,” the Judge said at the conclusion of the hearing.
Turning to the Defendant, Curry, he said the issue was not with the Commonwealths Attorney Office, or his defense attorney, noting “we had a jury problem.”
There has been no date set for the new trial, nor has a location been set.
Cross noted he would file a motion for a change of venue for the trial.
Curry was convicted in July after a two-day trial where he was charged with using his cell phone to communicate with a minor under the age of 18 with the intention of engaging in sexual acts with the victim.
Evidence presented during the trial included a transcript of the text messages between Curry and a former player, and a recording of an interview with the coach and KSP Detective Billy Correll.
In the interview Curry admitted to sending the texts, but maintained they were nothing more than playful flirtations and he had no intention of meeting the girl for sex at any point.
The Jury found Curry guilty after about two hours of deliberations, and recommended a one-year sentence and registration on the Kentucky Sex Offender Registry.