RANDOLPH — A woman who served on a jury that convicted a YMCA chaperone of child endangerment for playing a "shower game" with an 11-year-old boy believes the panel may have been misled by one juror’s insistence a conviction would not result in jail time. As a result, the attorney for defendant Donald Hertel has asked a judge in...
Donald Hertel, center, in Superior Court in Morristown in this April 2010 file photo.
RANDOLPH — A woman who served on a jury that convicted a YMCA chaperone of child endangerment for playing a "shower game" with an 11-year-old boy believes the panel may have been misled by one juror’s insistence a conviction would not result in jail time.
As a result, the attorney for defendant Donald Hertel has asked a judge in Morristown to take the rarely-used step of polling each juror to determine whether they were improperly influenced by "misinformation."
Hertel, 43, of Rockaway Township, faces up 10 years in prison and registration as a sex offender, but if it is determined the jury was tainted by "juror misconduct," the guilty verdict could be reversed.
Whether Hertel’s intent was sexual was the key point argued by both sides during his trial in Superior Court in Morristown.
On May 3, a jury of six men and six women found Hertel guilty of endangerment, but could not reach a verdict on the sexual assault charge. A mistrial on that count was declared by Judge David Ironson.
Possible penalties are not discussed by either side during trial. It was only afterward that jurors learned that Hertel faces prison time.
On May 24, juror Linda Eckert of Succasunna wrote to Ironson complaining about "confusion over the charge of endangering," according to a brief filed by Gerard Hanlon, the attorney for Hertel. The brief asks that the jury be polled to determine if the verdict was prejudiced.
In her letter, Eckert said some jurors favored acquittal on the endangering charge. However, they voted to convict after being told by one unnamed juror that child endangerment was a minor charge that carried no jail time, "so a game of this nature would not be played again," Hanlon said.
Morris County Assistant Prosecutor John McNamara said in papers opposing a jury poll that Eckert’s misgivings "fall far short of the very high bar" requiring the "extraordinary" step of questioning a jury. The state Supreme Court also "has long held that verdicts should not be second-guessed based on second thoughts of a juror," to avoid "an open invitation to any digruntled juror to try to destroy a verdict," McNamara said.
Ironson has not decided whether to question the jurors.
Legal observers disagree on whether such a move is necessary.
Attorney Rubin Sinins of Newark said the jury should be queried because it appears it erred by finding Hertel guilty "based on a misunderstanding of the consequences" and to send a message rather than on the facts.
But Seton Hall Law Professor John "Kip" Cornwell said the jury should not be polled. Juror regret is not uncommon and Eckert’s concern reflects typical deliberation give-and-take rather than misconduct, he said.
"I don’t really see this as juror misconduct," Cornwell said. "This is just one juror spouting off his mouth. It’s his opinion."