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Jester denied new trial

By John Miller, 04/27/17 3:41 PM

judges gavel scales justice

PRESCOTT – A new trial for Tim Jester was denied Thursday morning in Circuit Court.

Jester returned to court seeking a new trial. His lawyer claimed two of the jurors violated court orders and went on social media, which prejudiced them during the trail. Jester was found guilty of three counts of sexual abuse and one count of rape in March.

Abby Fore was the first witness called as testimony throughout the morning dealt with a post she made on Facebook about not being picked for the jury. She admitted sharing a link about the case, but said the only post she made concerned her not being selected for the jury. Fore said there was discussion on the social media site, with some stating Jester was guilty, her being one of them.

Rowe Stayton, Jester’s attorney, had Fore explain how the social media site works as to page settings. She said her page is set on private but has changed itself to public before. Fore said she supported the prosecution and was at the trial.

Fore said she knew other potential jury members were in court when she made the post, which occurred after she was denied a spot. “I wasn’t concerned about it,” she said of her post. “I believed he was guilty.” Fore told the court none of the likes or comments she received on her post were from members of the jury.

Eighth Judicial District Prosecuting Attorney Christi McQueen pointed out the screen shot entered into evidence by the defense had been tampered with and entered a screen shot of Fore’s post of her own into evidence. She referred to the two screen shots throughout the hearing.

Under cross examination Fore admitted knowing the possible jurors didn’t have access to their cell phones and couldn’t see or comment on posts.

Next up was Cassie Gonzales, who was on the jury. She admitted being a Facebook friend of Fore’s and said she accidently hit the Facebook application on her phone and scrolled through her newsfeed, but didn’t look at any posts or read any comments and removed the app from her phone so it wouldn’t happen again.

She admitted being on social media since her college days and has an iPad at home that’s always logged in to the site, but said she didn’t look at it at home. “I was completely quiet on social media about this case.”

The fact assistant prosecuting attorney Traci Graham made eye contact with Gonzales was brought up, with Gonzales saying she didn’t remember it happening.

Gonzales said she didn’t comment on the case on social media before being picked for the jury because she knew people on both sides. “I wasn’t influenced by anything I saw on Facebook,” she said. “I didn’t get back on until the trial was over.”

Stacy Jester followed, saying she contacted Stayton once the trial began because she’d heard some of the jurors had been on Facebook. Stayton told the court he came in Tuesday morning when the trial began and said two jurors had been on the site, but it wasn’t discussed in court.

McQueen had Jester explain the difference between Facebook and messenger. Jester said posts can be deleted from the site, but messenger is like texts as it’s one-on-one communication.

DeeAnna Glass was called. She told the court she was in the courthouse during the trial and saw Fore’s post on Facebook and had seen a comment from Gonzales. However, Glass said she was told prior to Thursday’s hearing the post wasn’t from Gonzales but from Cassie Green. When asked who told her this, Glass said it was Sheree Wilson.

Circuit Judge Randy Wright said much of this was heresay because the court needed to see what Glass saw.

Glass was asked about the comment after the trial and said she tried to pull it up but the post was no longer there. “I’m not confused about who made the post, it was Gonzales.”

McQueen asked Glass if Stayton didn’t also represent her son in a case yet to come before the court and was told he does.

She admitted seeing the post one time and hadn’t studied it. She said Stayton had asked her to pull the post up after the trial ended, but she was unable to as it had been removed.

During Glass’ testimony, references were made to both Gonzales and Cassie Green, who wasn’t on the jury.

Juror Shannon Smith said she did get on Facebook Monday night after being picked for the jury, but only did so to check the sizes of adult baseball caps for a baseball group she’s involved in. Otherwise, she said, she didn’t look at anything on the site.

Calvin Beasley questioned Green who said she was Facebook friends with Fore and had made the comment on Fore’s post. Green said she thinks the post is still there, and saw nothing from Gonzales on the site. She said comments can be deleted from the site, but any comment or like would have resulted in her being notified.

McQueen asked when Green last checked that particular post and was told Tuesday of this week. She told the court she’s not friends with Gonzales on the site.

Wilson was called in. She said she had talked with Glass about the trial this morning and knew Glass was a witness in the case. Wilson admitted having talked to Kim Jester about the case and had been told the comment was made by Green and not Gonzales. Wilson said she repeated this to Glass.

In closing, Stayton said the duties of the court are to follow the Sixth Amendment which guarantees the right to a public and speedy trial by a fair and impartial jury. He reminded the court the jurors had been instructed to avoid all social media and not discuss the case with anyone, yet two jurors disobeyed the court’s instructions. Because of this, he said, the appearance of fairness in this case has been diminished and asked for a retrial.

McQueen argued any prejudice must be proven by the defense and none had been. “There’s been nothing to show Tim Jester’s trial was prejudiced in any way,” she said. “He’s going for a technical violation.

Both sides talked about other cases involving social media and jurors who violated the court’s instructions.

McQueen pointed out Stayton could have asked the court to remove the offending jurors and replace them with the alternates at any time. Both jurors, she continued, admitted they weren’t prejudiced by anything they saw on social media, though they did click on Facebook. “There is no basis for a new trial. The defense knew before making its opening statement someone had accessed Facebook. If it were a problem, it should have been taken care of before the final verdict came out. This was a good trial and the verdict should stand.”

“I reported what I was told before the trial began,” Stayton said, “and expected the court to talk to the jurors.” He said because the jurors disregarded the court’s instructions a new trial should be granted.

Wright said the jury wasn’t sworn in until Tuesday morning, which is the court’s habit in case something happens to a juror. He continued saying if one of the jurors had been in a restaurant or shopping they could have overheard others talking about the case because they don’t live in a vacuum. “Things happen. The jurors were impartial.” The motion for a new trial was denied.