Grant County Circuit Court Judge William D. Cramer Jr. denied a request by the attorney for a John Day man sentenced to prison for sexual abuse to set aside his judgment and grant Bradley Moles a new trial.
Moles was sentenced Jan. 31 to 75 months in prison for one charge of first-degree sexual abuse and was acquitted of four additional sex-related charges. That was the outcome of his second trial. Moles’ first trial ended Sept. 15 with a hung jury following a five-day trial. Oregon requires 10 of the 12 jurors to agree on a felony verdict.
Moles was prosecuted by Grant County District Attorney Jim Carpenter. Moles’ defense attorney, Foster Glass, presented five reasons for granting Moles a new trial: irregularity in the proceedings of the court, jury or adverse party; misconduct of the jury or prevailing party; newly discovered evidence; insufficiency of the evidence to justify the verdict or other decision; and error in law occurring at the trial.
In his 106-page motion, Glass claimed that both jury misconduct and error in instruction “changed the outcome of the trial, raising confusion and contradictory conclusions of the jury.”
Citing the clerk of court, Glass said three jurors wrote letters to Cramer. In her Jan. 28 letter, Linda Gingrich said she was one of the two women who voted not guilty on all five counts in Moles’ second trial.
“As we deliberated, I felt that we would have found Mr. Moles not guilty on all counts — but all of a sudden one young man ... decided to make a statement that really was global to the years mentioned in the trial (not specific to the ‘on or about March 31st date’). He got everyone riled up and we did more discussions with a result of an 8-4 vote of guilty. Then a woman juror ... started loudly saying that she wasn’t going to be part of a ‘hung jury’ like the last trial.”
Gingrich said she didn’t know anything about the first trial. The woman juror then “truly bullied” two women into changing their votes from not guilty to guilty, Gingrich said. The outcome of the trial “bothered me greatly,” she said in her letter, and she wanted something to be done before sentencing.
“When it’s after 8 p.m. and jurors were exhausted, some were actively bullying others, people weren’t thinking clearly, this vote was all wrong,” she said.
Another juror in the second trial, Marla Compton, said in her Jan. 30 letter to Cramer that she voted not guilty and stood by that decision.
With that said, Compton noted, “I do feel that with the amount of information and the time of night that there was pressure from some of the jurors to just get it over with. I feel that if we would have adjourned and reconvened the following day that Moles would have been found not guilty.”
Glass characterized the situation described in the two letters as a “classic deadlocked jury” and referred to an American Psychological Association article on how jury pressure could lead to unfair verdicts. The issue of a “hung jury” was never mentioned during the second trial, Glass claimed, so the reference to it was a case of jury misconduct. He asked that Cramer “make an inquiry of these jurors on the record.”
Glass also said that the victim attempted multiple times to recant to the judge, to family members, to the Department of Human Services and to the defendant’s attorney.
The victim was not pressured by family members into writing a recantation letter to Cramer, Glass said, but she was pressured by DHS staff to bring the allegations against Moles. When the recantation letter was produced on the morning of the trial, one or more pages were missing, Glass said.
Glass said the victim was not believed by jurors or family members.
“This is a case that involves a girl who wanted to date inappropriate and risky boyfriends at a very young age, with a protective and strict father, and who wanted to live with her more permissive mother, who was unable to parent due to her drug abuse problems,” Glass said.
Glass also said the evidence presented at trial did not support a verdict of sexual abuse.
“The court heard and ruled on the defense motions alleging that all the prosecution was presenting was hearsay upon hearsay with no actual testimony from the purported victim,” Glass said.
Glass also suggested an op-ed piece written by Carpenter and Grant County Deputy District Attorney Mara Houck that appeared in the Feb. 7 Blue Mountain Eagle across from an article reporting on Moles’ 75-month sentence “may have the effect of quashing jurors’ concerns in a controversial case which still has matters pending before Grant County Circuit Court.”
In his response to Moles’ motion for a new trial, Carpenter cited State v. Jones on the protections afforded juries during deliberation: “There is a strong policy in Oregon to protect jury verdicts from attack. Only limited kinds of juror misconduct justify a new trial. The kind of misconduct that will be considered in an attack on a verdict is misconduct that is extrinsic to the communications between jurors during the deliberative process or that amounts to fraud, bribery, forcible coercion or any other obstruction of justice that would subject the offender to contempt of court or criminal prosecution.”
The actions described in the two letters sent to Cramer were examples of intrinsic communications between jurors, Carpenter said. As to the instance of a juror bringing up the hung jury in the first trial, Carpenter noted that “any error here was invited by the defendant,” as Glass “repeatedly referred to the first trial throughout the second trial.”
Carpenter said that the two letters came from jurors who voted in the minority to acquit and “appear to be venting their disappointment.”
Carpenter also suggested that each letter provided to the court followed the publication of a story about the Moles case in the Jan. 19 Blue Mountain Eagle, stating that the charge Moles faced carried a 75-month mandatory minimum sentence.
“Only after being informed of and considering any punishment that the court was likely to impose, were challenges made by a minority of the jurors,” he said.
Again citing State v. Jones, Carpenter noted that jurors are not perfect and may want to cut deliberations short: “Our system of justice is not a perfect system, because it is administered by imperfect human beings ... Even if (the jury in the Jones case) abrogated the duty to deliberate because its members wished to go home early, we are not at liberty to invade the sanctity of their deliberations and order a new trial because of the countervailing policy concerns.”
Carpenter characterized Glass’ arguments that the district attorney, Court Appointed Special Advocates and DHS staff hid documents from the defendant as “a rehash of defendant’s argument” at trial. He also noted that Circuit Court Judge Lane W. Simpson found that no misconduct had occurred in the first trial.
As for Carpenter and Houck’s op-ed in the Feb. 7 Blue Mountain Eagle, Carpenter said it was published “well after the second trial and had no bearing on jury deliberations or the trial itself.”
The state’s response to Moles’ motion was submitted to the court on Feb. 22, the scheduled date of a hearing on the matter, and Glass was given 10 minutes to read the 12-page motion.
Cramer noted that Moles’ motion did not provide any new evidence and asked Glass to explain his allegations of prosecutorial misconduct. Glass said the district attorney allowed the victim to provide differing testimony during the two trials.
Carpenter said the victim testified to what she testified, and it was up to the jury to decide if she was credible. Glass responded by noting that prosecuting for the state was not a “sporting contest.”
Cramer agreed that dealing with witnesses could be difficult and said he would take Moles’ motion for a new trial under advisement.
He issued his opinion Feb. 23.
“Having considered the filings and applicable law, motions for a new trial and in arrest of judgment are denied,” he wrote.