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Trial to Start
Again Feb. 17

By Ted Waddell
MONTICELLO — February 10, 2004 – For Kenneth Newman – the 24-year-old resident of Monticello who is on trial for vehicular manslaughter, vehicular assault and a host of traffic violations stemming from a fatal car wreck in the early morning hours of August 19, 2003 – it was back to square one.
In the wake of a 16-count grand jury indictment against Newman, the trial started on Thursday, January 29 before a local jury, with Sullivan County Court Judge Frank J. LaBuda presiding.
Throughout the trial and after each day of testimony, Judge LaBuda cautioned the jury not to visit the scene of the deadly crash, speak to witnesses, follow the ongoing trial in the media or discuss the precedent-setting case with anyone outside the sacred jury room.
But then it came to light that a juror had apparently decided to investigate the matter himself.
On Thursday, February 5, the foreperson of the jury sent a note to LaBuda informing him there was a problem.
Juror #4 had told his fellow jurors that he visited the scene of the crash along Route 55 in Swan Lake where Newman lost control of his 1997 Pontiac Sunbird, and subsequently discussed the case with his wife.
The juror saw the site of the tragic wreck that instantly killed 24-year-old Tabitha Joslin, the fiancee of Newman’s best friend Billy Conklin Jr., 24, and sent Conklin to Westchester Medical Center with critical injuries.
Also injured in the 2:45 a.m. crash were 22-year-old Lisa Armetta and Douglas Evans, 24.
Juror #4 admitted to driving from Kilcoin’s Tavern to the accident scene, reportedly in an effort to recreate the motor vehicle accident in his own mind.
The Particulars of the Case
The prosecution said Newman was behind the wheel of the vehicle that was involved in the crash which claimed the life of the bride-to-be and mother of a four-year-old daughter.
The defense contended Newman and his friends were fleeing for their lives after a brawl broke out at the watering hole in Swan Lake, reportedly over a small stack of quarters and a pool game.
Several witnesses said a mob (the number of people involved varies a bit) attacked Newman and his friends as they tried to leave after the bar owner closed the bar and told his bouncer to clear the premises.
Witnesses said the angry crowd punched the small group of friends (and Evans, who was trying to help them flee), throwing bottles and rocks at the car as Newman drove away.
“We’re going to f--- you up – we’re going to get you,” recalled one witness of shouts from the mob as the ugly scene unfolded outside the bar.
About a quarter mile down the rural road, Newman lost control on a sweeping curve and crashed into a utility pole.
NYS Police estimated the vehicle was traveling at 70 MPH when Newman lost control and around 55 MPH at the time of impact.
Questions, and Tough Answers
At 1:15 p.m. this past Thursday, the note sent to LaBuda started a flurry of anticipation and expectation swirling throughout the courtroom: had the jury reached a verdict, did they want further clarification on a point of law or was there a problem?
After LaBuda, Newman’s defense counsel and the prosecuting assistant district attorney talked in private with Juror #4 and three other jurors, the local judge checked case law and determined he had no choice but to declare a mistrial.
“In order to insure that both the people and the defense have a fair trial, this court has no option but to declare a mistrial,” he said.
After Judge LaBuda brought the jury back into court, he broke the news that a fellow juror had tossed a monkey wrench into the criminal proceedings, forcing a mistrial.
“Throughout life, sometimes things happen where there is collateral damage or unexpected circumstances that flow from things that would appear to be relatively harmless,” he said.
Noting that U.S. law is predicated on 200-plus years of history, LaBuda said, “That is why a criminal trial in America is truly unique. A trial is an attempt by our system of law, by our society, to recreate an incident that happened at a point in time – a search for the truth, if you will, as to what happened on a certain day in question . . . basically a second or two.
“No matter how well-intentioned a juror’s action might have been . . . this court has no alternative but to declare a mistrial,” added LaBuda.
“No one is pointing a finger of wrongdoing at anyone because the court is satisfied that there was no wrongdoing,” said LaBuda.
What Were They Thinking?
In the aftermath of the mistrial, LaBuda said the jurors were “wrestling with the issue of justification”; in essence, was Newman justified for his actions out of fear for his life and the lives of his passengers?
Evidence was introduced at trial that Newman’s blood alcohol concentration (BAC) was tested two hours after the fatal crash at .11 percent, with traces of cocaine and marijuana in his system.
Joslin had a BAC of .21 percent, Armetta .18, Evans .17 and Conklin .14. Several of the passengers also tested positive for controlled substances.
Doing It All Over Again
After LaBuda declared a mistrial, both the prosecution and defense started gearing up for the new proceedings.
“The judge handled the application for mistrial with the highest level of professionalism and expertise,” said Michael McGuire, Sullivan County Assistant District Attorney (ADA) and prosecutor.
McGuire said “respect for the judicial process requires that everybody’s rights be protected from a potential taint that comes from outside the jury room into the jury room.”
Looking ahead to the new trial, McGuire (who comes from a sports background) said, “I’m planning on pitching, and I hope the management [Sullivan County District Attorney Stephen Lungen] won’t change the lineup. We’ll do some things differently – we don’t want to play the same movie again.
“I’m disappointed [because] we played the whole game and got a tie,” he added.
McGuire said it appeared as if the jury “was moving toward a conviction” based on the progression of information they were requesting.
Not so, said Newman’s defense counsel Henri Shawn, former Sullivan County ADA and head of consumer affairs.
Shawn said that in post-mistrial queries of the alternates, “It appears to me that there probably would have not been a conviction for manslaughter – that’s an encouraging sign.
“From a defense point of view, the longer a jury deliberates, it’s usually better for the defendant,” he said.
Shawn added that until the surprise word of a mistrial hit the courtroom like a ton of bricks, he figured it was shaping up to be an acquittal or hung jury.
How did Newman handle the curve ball?
“It hit him out of left field,” said Shawn. “We were on the verge of having the trial over, and all of a sudden we find out that due to a juror’s activities, we have to start all over again. . . . He took it very hard, but he’ll bounce back.
“He was involved in this terrible incident that will be with him the rest of his life,” added Shawn. “He goes to trial, [and] we’re waiting minute by minute for the jury to come back with a verdict, and then this happens. . . . He had his day in court stolen from him. “
‘Jurors Are Human Beings’
According to Judge LaBuda, the jurors were “strictly admonished” on several occasions not to go to the scene of the wreck during the trial.
“But jurors are human beings, and things happen that create some monumental legal problems,” he said.
“In light of the defendant still being in jail dealing with a manslaughter case, we will try this [new] case immediately,” he added.
Jury selection for the retrial is scheduled to start this week. The retrial is slated to begin at 9 a.m. on Tuesday, February 17.

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