District Judge Steve Ellis urged opposing attorneys Tuesday to seek “a resolution both sides can live with” and avoid an expensive and difficult retrial following a hung jury in a sexual assault trial.
Ellis addressed prosecutor Sam Moss and defense attorney Landon Thompson in a hearing on the potential re-trial of Billy Joe Smith, an Army soldier stationed at Fort Huachuca, Ariz.
Smith, 35, formerly of Brownwood, stood trial in April on a three-count indictment for aggravated sexual assault. Ellis declared a mistrial after jurors were unable to reach a verdict, and prosecutor Ryan Locker, who tried the case for the state, said there would be a retrial.
With no indication from either attorney that a retrial could be avoided, Ellis set July 6, 2009, as a trial date.
Smith did not attend the hearing, but Ellis said he will require Smith’s presence at an April pre-trial.
Smith’s accuser was 12 when Smith, then 17, married the accuser’s 30-year-old mother in 1990, according to testimony in the April trial. The accuser testified that Smith assaulted him numerous times over a period of about seven years when he was a boy and a teenager. He did not report the alleged assaults to law enforcement until 2006.
Smith testified in the trial that he never had any sexual contact with the accuser, and said he was sickened by the allegations.
“I remember (the trial). It was a lengthy, lengthy trial,” Ellis said at Tuesday’s hearing. “I remember the testimony well. I remember it was a hard-fought case.”
Ellis said a lot of taxpayer money had been spent on both the prosecution and defense at the April trial. He said a retrial could end “with the same degree of frustration as the last time. I do know the expense is going to be huge again.
“ … My gut instinct is, this is not a bottle of fine wine that’s getting better with age, but it’s going the other direction.”
“It is what it is, Judge,” Moss, who was not involved in the April trial, told Ellis. “I think that decision’s been made.”
Ellis noted that Thompson has requested a transcript of the trial and directed court reporter Christi Escobar to prepare one. Ellis also said the county will face the expense once again of having witnesses come in from across the country.
Thompson said the pending case has impacted the military career of Smith, who is a sergeant first class. “This is going to be another donnybrook, my fear is,” Thompson told Ellis, adding that Smith’s “life is on hold.”
Ellis asked if Locker will be the prosecutor who retries the case. Moss said he believes so.
Ellis also referred to a new indictment the Brown County Grand Jury returned against Smith in October. The indictment is for tampering with a government record.
It is alleged in the indictment that Smith omitted information about his financial status when he applied for a court-appointed attorney.
While most of the discussion at Tuesday’s hearing centered around a retrial of the sexual assault case, Ellis said the state would have to decide by the April pre-trial hearing whether it wanted to retry that case or try the new case.
Ellis has issued a gag order in the case.
In other recent court action:
David Cockroft pleaded guilty to engaging in organized criminal activity and was sentenced to 13 years in prison.
Dianne Stuckey, on probaton for possession of a controlled substance with intent to deliver, was revoked and sentenced to five years in prison.