August 2, 2005
Section: First Edition Cos
Edition: Fulton Montgomery Schoharie; First
Page: B-02

Juror seeks to retract verdict Man says he felt pressure to vote guilty


Gazette Reporter

JOHNSTOWN -- A juror who joined his 11 colleagues on June 17 to find Mark A. Stearns guilty of taking secret photos of a naked male Lexington Center client in his care, testified Monday he wants to retract his jury vote. The juror, who cannot be identified, testified at a special hearing before Fulton County Court Judge Richard C. Giardino on the question of whether the juror felt pressured or was influenced to vote contrary to his own finding in the case. "I had reservations all along ... I was going to vote not guilty," the juror said. "I could not convince my fellow jurors to consider my evidence," he said. As jury polls went from 8-4 guilty to 10-2, he said he became frustrated and voted for the guilty verdict. "I felt I was getting nowhere. I was accomplishing nothing. I wasn't going to sway them," he said. "Are they second thoughts?," Giardino asked, pressing the juror on the issue of whether he was coerced into voting for the guilty verdict, the threshold that must be met to challenge the verdict. The juror said he was not threatened, but in deliberations when he expressed his doubts about state police testimony, he said his fellow jurors were angry. He said he felt pressured to change his vote to guilty. Several days after the late Friday night verdict, the juror said he contacted both Judge Giardino and defense attorney Randall Kehoe to express his concern over the guilty verdict. Kehoe has filed a motion to nullify the verdict, and court officials said he may use testimony elicited Monday for that effort and for any eventual appeal. Kehoe and Fulton County District Attorney Louise K. Sira both questioned the juror. Kehoe sought to gain insights into deliberations, but Giardino sustained repeated objections from Sira that stopped his inquiries. The judge said the law allows examination of a juror's claims, but does not permit exploration of the actual deliberations. The juror, citing his computer expertise, said the rest of the jury did not know enough to understand how easily the time and date stamps on the digital photos in evidence could have been changed. "The evidence was not properly discussed," he said, asserting, "there was presumption of guilt from the word go." When he told fellow jurors he favored a hung jury, he said they protested, "You're going to let this man walk and he's guilty." The jury deliberated about eight hours before finding the 50-year-old Stearns guilty of using a wristwatch camera to take a client's photo in March 2004. Stearns, who was fired from Lexington following his arrest last fall ending a 10-year career as a direct care staffer at Lexington, was convicted on counts of felony unlawful surveillance and endangering the welfare of an incompetent or physically disabled person. Sentencing is scheduled for Aug. 11. The maximum penalty on the felony surveillance count is 1 1/3 to 4 years in prison.

Reach Gazette reporter Jim McGuire at 725-8412 or

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