Wednesday, June 11, 2014 | NEWS
Danielle H. Moe | Staff writer
SIREN — Richard Phernetton’s 2011 conviction of first-degree sexual assault of a child under the age of 13 was reversed and remanded for a new trial by the District III Circuit Court of Appeals.
Phernetton, 80, of Montesano, Wash., formerly of Spooner, was charged in 2001 and after a three-day jury trial was found guilty. The trial was presided over by Kenneth Kutz, Burnett County Circuit Court judge.
Phernetton contended at his 2011 trial that he was unaware of the charge against him when he moved to Washington state from Wisconsin in 2001.
The May 26, 2014, appeals court decision states that, “there was an impermissible risk that the jury’s verdict was coerced.” On the third day of trial the jury returned a guilty verdict after hearing six hours of evidence and deliberating a further nine hours.
During deliberations the jury was asked by Kutz twice for the jury’s “numerical breakdown,” and commented the jurors were making “progress” after additional jurors in the minority opinion joined the majority opinion. The appeals opinion further found that Kutz advised jurors incorrectly.
At 11 p.m., and about eight hours into deliberation, the jury asked what their options where and if they could, “go home, sleep on it and come back with clearer heads.” Kutz responded, “The problem that I have is that once the case is turned over to the jury to make their deliberations we can’t split you up until a verdict comes back or I make some other decision here.” Kutz went on to question the foreperson about the “likelihood” of the jury reaching a unanimous verdict stating he would, “check back with you in about another half hour, 45 minutes, and we’ll see where you’re at unless you return a verdict in that time.”
Immediately after the jury retired to deliberate, Phernetton moved for a mistrial observing the eight hours of deliberation had exceeded the six-plus hours of evidence taken that day, and the jurors had been “systematically pressured for longer than the case took to put forward.” The state denied the motion, reasoning that the length of deliberations was due to the fact that the jury had to determine the credibility of the witnesses.
The appeals court opinion states that the problem with “the trial court’s conduct was its inquiry into the jury’s numerical division. There is no question the trial court erred by making such an inquiry.”
In regard to the court’s incorrect advisement for the jury to separate before reaching a verdict the appeals court writes, “the court’s statements undoubtedly left the jurors uncertain how long into the night they would be made to deliberate.”
Court records indicate that on May 29, 2014, a court of appeals decision and order remanding for new trial were filed.