OSBURN SEEKING NEW TRIAL

By Jeannie Nugent/OF THE COMMERCIAL STAFF

HAMBURG — Defense attorneys maintain juror misconduct should merit a new trial for Kenneth Osburn, who was convicted last month and sentenced to life without parole in the 2006 strangulation death of Pine Bluff teenager Casey Crowder.

The motion for a new trial was filed Friday in Ashley County Circuit Court by lawyers James Wyatt and Patrick Benca. Drew County resident Darcy Melder swore in an affidavit saying that a co-worker, Lisa Adams, told her that juror Stacy Wesson stated that she and other jurors believed that Osburn was guilty. The statement was allegedly made to Adams while she was at dinner with Wesson the weekend prior to opening statements, which began Monday, Jan. 14.

“If true, it appears that Wesson and other jurors violated their oath on the very issue which has caused the court and the parties such concern. This would amount to serious juror misconduct,” the motion reads.

Melder’s affidavit was signed Wednesday.

“One of our investigators was advised of this situation and followed up on it. We were able to ultimately get an affidavit which is attached to our motion,” he said.

Tenth Judicial District Prosecutor Thomas Deen said through a representative that he has not reviewed the motion for a new trial and could not comment.

Tenth Judicial District Circuit Court Judge Sam Pope has 30 days to render a decision.

Wyatt said a hearing will likely be scheduled for the defense to present its case and the state to cross-examine the witnesses.

If Pope doesn’t give a ruling within 30 days, the motion is deemed denied. The defense has 30 days from the time of the ruling to file an appeal. They can at that time also petition the state appeals courts on all other possible appeal claims from the trial.

Pope could not be reached for comment.

The motion cited a 2000 case, State vs. Cherry, in which jurors had decided before deliberations began that the defendant was guilty. That court granted a new trial based on juror misconduct. The Arkansas Supreme Court later upheld that decision, stating “...the mere fact that the jurors had formed an opinion prematurely supported a finding of prejudice.”

Furthermore, the high court opined that even if one juror prematurely decides a defendant’s guilt before hearing all the evidence it deprives the defendant of a fair and impartial jury. “...moreover, by discussing the case prematurely, those jurors who had already made up their minds could have possibly influenced others who were undecided about appellee’s guilt.”

It only need be proven that a “possibility” of prejudice existed to warrant a new trial, the opinion said.

“...once appellee demonstrated this possibility of prejudice, the trial court could not sit idly by and do nothing; the fact that this problem arose in a post-trial situation left the trial court with only one option, to grant appellee a new trial...” the opinion added.

Prior to being impaneled on Jan. 11, Wesson and the other jurors in Osburn’s trial told the court that they had not formed an opinion on Osburn’s guilt or innocence in the crime.

Osburn’s trial was moved from Desha County to Ashley County after Pope ruled that an impartial jury could not be impaneled in Desha County. The defense also mailed an extensive questionnaire to potential jurors to determine if they had already formed an opinion as to Osburn’s guilt.

Wyatt said Osburn, who is incarcerated in the Maximum Security Unit at Tucker, was obviously disappointed in the initial verdict.

“But he’s still optimistic on the appeal and for the future,” he said.

When contacted, Crowder’s mother, Melinda Crowder, declined to comment.