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Small courtroom errors can prompt retrials, Tampa Bay cases show

Their rap sheets would make anyone cringe.

Leo Richard Berube, a 40-year-old factory worker with a previous 1995 conviction for rape, was found guilty in 2006 of fatally strangling a Pinellas Park woman with a lamp cord.

Larry Austin Gregory, a 38-year-old drifter with "white power" tattoos and a history of assault, went on trial last month on charges that he lured a teenager into a downtown St. Petersburg construction site and raped her.

Both men recently learned they will get another chance at freedom because of courtroom errors. They are just two examples of how even a slight misstep in court can prompt a judge or an appeals court to order a new trial.

Protecting the rights of the accused is an honored part of the American legal system. But it's hard to find any numbers on how often retrials are ordered, or how much they cost taxpayers.

A day's trial in Circuit Court in Pinellas County costs at least $1,350 per day, according to salary figures provided by five different agencies.

But Pinellas-Pasco Public Defender Bob Dillinger and Chief Assistant State Attorney Bruce Bartlett point out that most court employees are salaried staffers who will come to court the next day anyway.

"Retrials of cases here occur quite frequently for whatever reason; that's kind of the way the system works," Bartlett said, pointing out that some retrials occur because juries can't agree on verdicts. "That's all a part of protecting the rights of the accused."

There's also a "horrendous" human cost for the victims, who "want to get on with their lives," said Laura Scott, a victim advocate coordinator for the Pinellas Sheriff's Office.

Appeals court rulings

Just last week, Florida's 2nd District Court of Appeal ordered a new trial in the case of a Hills­borough man who was sentenced to life in prison for allegedly raping a 6-year-old girl.

The problem in his case was that a medical expert testified about evidence that wasn't considered solid enough for a trial. Among the expert's testimony was information about the child's reaction to a medical procedure that "tends to suggest sexual abuse occurred" but didn't actually prove it.

The appellate court, which also handles cases from Pinellas and Pasco counties, does not track how many new trials result from its rulings. However, a review of opinions issued so far this year shows the court:

• Issued reversals last week for two convicted sex offenders, including a Pasco man who got bad advice from his attorney before pleading no contest to sexual battery. In the other case, the court ruled a witness had been improperly questioned in a violent sexual predator's civil commitment trial.

• Ruled a Hillsborough man was wrongly convicted of aggravated child abuse. He was sentenced to 30 years in prison for rubbing the blunt edge of a knife on his 8-year-old son, repeatedly stabbing a mattress, and shouting: "This is what I'll do to (your stepfather) and your mom." The court called the 2004 incident a frightening tirade, but said it didn't meet the legal definition of aggravated child abuse. A hearing this week will determine if he should be released from prison.

• Ordered a new trial for a Hills­borough man convicted of cocaine trafficking, but affirmed a conviction for marijuana possession. The court said the key word "knowingly" was missing from jury instructions.

Overall, the court has issued more than 30 reversals in criminal cases so far this year, but many won't lead to new trials because they relate to sentencing hearings or other legal issues.

Although the court's reversals often benefit the accused, they also can help the prosecution. Sometimes a trial judge throws out evidence, and the appellate court lets it back in.

'Textbook error'

The two recent Pinellas cases were thrown out last month because of statements made in court that might prejudice the jury.

Oddly, both statements were true. But because the justice system works so hard to protect the rights of those on trial, even truth can be considered prejudice.

Gregory, who has "white" tattooed on his left calf and "power" on his right calf, was nearing the end of his rape trial on Feb. 26.

In his closing argument, Assistant State Attorney Christopher LaBruzzo mentioned the fact that Gregory had the right to remain silent during the trial.

"That's a textbook error," said Dillinger.

The right to remain silent is a bedrock constitutional right, and emphasizing that silence can be seen as "an indication of guilt — oh, the defendant didn't testify, he must have something to hide," explained Dillinger.

The judge granted a defense motion for a mistrial, and arrangements for a new trial are under way.

LaBruzzo told the St. Petersburg Times that he was "merely restating the law" in his comment, and did not criticize Gregory's decision about whether to testify. But, he said he "learned a lesson that there are just certain issues that you should stay away from."

He also is glad the state will have the chance to try Gregory again.

Bartlett said LaBruzzo is known as a good prosecutor, and some missteps are inevitable as lawyers gain experience in the busy "MASH-style practice of law" of the State Attorney's Office.

The case of Berube, a man with wizard tattoos on his shoulders and a history of accusations involving abuse against women, was different.

During the 2006 murder trial, prosecutors wanted to let jurors know some things about Berube. They said he tied up his former girlfriend and raped her in 1993; was investigated in the case of a woman who was strangled to death in 1994; and raped a different woman in 1994. He was never charged in the first two cases, but got a 12-year prison sentence for the third.

This kind of evidence is tricky. Judges can allow it in if it shows such a strong pattern that it becomes important for a jury to hear. But they can't allow evidence that merely shows what a bad, distasteful person the defendant happens to be.

Pinellas-Pasco Circuit Judge W. Douglas Baird listened to both sides, and decided to allow testimony from the two women Berube was accused of raping.

The appeals court reversed on Feb. 25, saying testimony about the two attacks "did not bear any similarity or any logical relationship," to Berube's current charge.

Asked last week about the appeal court's opinion, Baird said, "In retrospect and looking at the decision, I think it was a good one. I wouldn't quarrel with it."

These checks and balances make the U.S. legal system admirable, he said.

"We have enough concern for the rights of the individual, even if he may be a bad individual," Baird said. "I'm proud of the system. I have no problems with it."

"If we start lessening the rights for the Berubes, then where do we draw the line?"

Times researcher Caryn Baird contributed to this report. Curtis Krueger can be reached at ckrueger@sptimes.com or (727) 893-8232.

Leo R. Berube: convicted in 2006 of murder, sentenced to 12 years in prison; appeals court overturned decision Feb. 25, saying testimony from two past alleged victims didn't factor into his current charge.

Larry Austin Gregory: went on trial last month on charges that he raped a teenager; judge declares mistrial after a prosecutor said Gregory remained silent during the trial, statements may have prejudiced the jury.

Small courtroom errors can prompt retrials, Tampa Bay cases show 03/06/09 [Last modified: Saturday, March 7, 2009 9:43pm]

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