A man serving life in prison has been granted a new trial — his third — by an appeals court that said the prosecutor repeated the very error that had caused the first mistrial.
Robert Geissler, 59, was convicted in 2009 of sexually abusing a 6-year-old girl. In a ruling issued June 22, the Florida 2nd District Court of Appeal said Geissler's trial was tainted by repeated references to the fact that he declined to speak to detectives. A defendant has the right to remain silent, and prosecutors cannot use that person's silence to imply guilt. In fact, courts have said the prosecution cannot even bring it up.
During the course of Geissler's one-day trial, prosecutor Eva Vergos "hammered the point home again and again" that Geissler cut off his jailhouse interview with detectives, according to the appellate court ruling.
Vergos told jurors that Geissler told detectives: "I can't say any more because if I do, I'll get in more trouble."
Vergos, now a candidate for county judge, said she "certainly did not intend to violate this man's rights."
She viewed his jailhouse statement as an "implication of his guilt — not an invocation of his rights," she said.
But the appeals court said Vergos and Circuit Judge Michael Andrews, who allowed the statements, should have known not to mention it. Andrews declared a mistrial in Geissler's first trial in 2008 when a detective testified that Geissler invoked his rights and cut off questioning.
"The State used Mr. Geissler's exercise of his right to remain silent to challenge his credibility and to suggest that he was guilty of the alleged sexual abuse," the appellate court's ruling stated.
Vergos also was the prosecutor in the first trial. After the detective's statement about Geissler invoking his rights, she said, she argued for a mistrial because that "was a clear error." She said she didn't see his jailhouse comment used in the second trial as treading on the same ground. But the appellate court did.
"They have made a ruling and we will abide by that ruling," Vergos said.
The appellate panel cited another error in the 2009 retrial that occurred during the testimony of Julie Nadkarni, a child protection team member and registered nurse who examines children for physical signs of abuse. She testified that she had "no physical findings supporting the allegation that sexual abuse had occurred," but said she believed the girl has been sexually abused.
That statement gave "the jury the clear impression that the expert believed that the child victim was telling the truth," the ruling states. Expert testimony cannot be used to bolster the credibility of another witness.
The child was 6 at the time of the alleged abuse. She is now 10. In giving a history of the case, the appellate ruling said the girl's parents were friends of Geissler's wife and lived in West Virginia. When the child's parents lost their parental rights in 2005, the girl, then 4, came to Florida live with the Geisslers in Port Richey.
The child's father also moved to Pasco County. He "was apparently homeless, and he lived in a tent pitched in various locations," the ruling states. Mrs. Geissler sometimes took the child to visit her biological father.
From September 2007 until April 2008, Geissler worked on a construction project in West Palm Beach and was only home on weekends, the ruling states. His wife worked on Saturdays, so Geissler was alone in watching the girl until his wife came home.
On April 19, 2008, Mrs. Geissler came home and the girl told her that Geissler had been sexually abusing her for months, the document states. Mrs. Geissler confronted her husband and "began packing to leave the house" with the child, the ruling states.
Geissler went outside and shot himself in the chin. He later claimed it was an accident.
He was arrested July 14, 2008, and charged with capital sexual battery on a victim younger than 12. Geissler has been incarcerated since that date.
The child recanted during the 2009 trial and said she made up the sexual abuse allegations because she was angry with Geissler for disciplining her and because she wanted to live with her biological dad. Then, in later questioning, she said she actually was telling the truth about being sexually abused.
"I'm disappointed that this little girl is going to have to go through it again," Vergos said.
Vergos said a new trial date will be set.
If she has to retry Geissler to "ensure he pays for his crime," she said, "then that is what we are going to do."
Erin Sullivan can be reached at firstname.lastname@example.org or (727) 869-6229.