Embattled former McCreary Central Girls Basketball and Softball Coach Toby Curry will get a new trial, in a new courthouse, with a new jury deciding his fate.
Curry was charged in 2015 with allegedly making improper contact with a minor through the use of text messages and went to trial this past July.
A McCreary County jury convicted Curry of the charge, but later the verdict was voided after it was discovered that two of his former students served on the jury panel. Despite an original one-year sentence recommendation by the jury, Curry would most likely not have served any additional jail time, as he was on court-ordered home incarceration during the process and would likely be credited for time served. He would have also had to register on the Kentucky Sex Offender Registry.
Meeting in McCreary County Circuit Court in a reset hearing Monday morning in front of Judge Dan Ballou, the prosecution and defense agreed to hold the new trial in a new venue.
Curry’s attorney, David Cross, pushed for the new trial after revelations following the original conviction that two former students of his client sat on the jury during the first trial.
Judge Ballou agreed that a new trail was proper, as well as a change of venue due to the publicity the case received locally, and set a new trial date of May 10 in the Whitley County Courthouse.
The defense reportedly argued for a venue closer to Curry’s home, in Adair County, but the Judge was concerned about scheduling issues with another courthouse and ruled for the location where he presides and holds an office.
Following the original verdict Curry’s attorney filed motions questioning the legality of the verdict, pointing primarily to the fact that the two jurors did not disclose their prior relationship to the accused former teacher – potentially tainting their impartiality.
During a hearing on the motion in September Cross argued that the two former students on the panel violated his client’s rights to an impartial jury. The prosecution contended Curry was obligated to object to the jurors during the selection process.
Circuit Court Judge Dan Ballou sided with the defense, stating that the jurors in question were given ample opportunity to disclose the relationship during the vetting process, which would have allowed further questioning and possible dismissal from the jury.
During the July trial a recording of the defendant’s interview with Kentucky State Police Detective Billy Correll and a transcript of the text messages in question to a then 15-year-old former player were presented to the jury.
In the interview Curry admitted to sending the text messages, calling them a “bad idea,” but repeatedly denied they were used in an attempt to seduce his former player into committing a sexual act with him.
The transcript contained several instances of innuendo and possibly suggestive passages, but the defense claimed they were “harmless flirting” during the trial.