Molestation case declared a mistrial
By CHRIS TISCH, Times Staff Writer
LARGO -- After almost five hours of deliberation Thursday night, a jury could not decide whether registered sex offender James Whittey was guilty of offending again.
Whittey, 39, worked as a maintenance man at the Fairington Apartments last year when authorities say he used a key to open an apartment door, then molest a 12-year-old girl who lived there.
Whittey was hired by the apartment complex, 2738 Roosevelt Blvd., even though he had a previous child-sex abuse conviction and was listed on the Florida Department of Law Enforcement Web site as a sex offender.
Whittey faced 30 years to life in prison if convicted. But after a two-day trial, Judge John A. Schaefer declared a mistrial just before 10 p.m. Thursday, when the jury gave up.
Five jury members wanted to convict Whittey, but one juror wanted to acquit him and would not budge, said Bill Horne, the jury foreman.
"We worked very hard and very congenially to try to overcome his concerns based on the evidence presented, and he just wouldn't be convinced," said Horne, the Clearwater city manager.
Prosecutors said they will try Whittey again. A hearing to set a new trial was set for next month.
The attorneys thought the verdict would come quickly when jurors decided to stay into the evening to deliberate rather than return the next day. But the deliberations dragged on, prompting one defense attorney to take a joking jab at Horne by saying: "That's why nothing gets done in Clearwater."
The jury's indecision was painful for the girl's mother, Disa Prudden, who said her daughter looked forward to putting the incident behind her. As it became more apparent that the jury was struggling to reach a verdict late in the night, Prudden sat outside the courtroom sobbing.
"I just don't know how I'm going to go home and tell her," Prudden, 37, said.
Whittey's fiance and mother also were present, but declined to comment. Whittey has been held at the Pinellas County jail since his arrest.
Pinellas sheriff's deputies arrested Whittey on May 30, 2001, on charges of burglary and lewd and lascivious molestation. The girl woke her parents that night -- crying, hyperventilating and curling into a fetal position.
She told them the maintenance man had been in the apartment and woke her up. She said the man told her he was there to fix a leak, then asked her for a hug. She said the man then grabbed her private areas and put his hand over her mouth.
When the girl struggled, he left the apartment. When the girl woke her parents, she gave a description of Whittey. Prudden called the sheriff's office, then the maintenance supervisor, James Walker. Prudden said she wasn't sure if her daughter had been dreaming, Walker testified.
Whittey was summoned to the complex, then arrested.
Whittey's public defender, Soraida Justiniano, argued that the girl may have dreamed the incident. She also questioned why Whittey's fingerprints were not found in the apartment, though forensic specialists dusted for prints in areas where the girl said Whittey had touched.
"We don't have any physical evidence and that is so important," Justiniano said.
But the prosecution's case was strengthened by Whittey's fiancee's testimony that he was at the apartment complex that night. Walker, meanwhile, testified that there were no work orders called in that night, so Whittey had no real reason to be there.
Prosecutor Stephanie Bergen said Whittey was one of only two workers with access to apartment keys kept in the maintenance shed.
In closing arguments, Bergen said the coincidence was too great. How could the girl falsely accuse Whittey on a night when he just happened to be there?
There was a snag in deliberations, however, when a juror said he had heard the girl talking with her mother and father before the trial. The juror said he heard the parents tell the girl something to the effect of: "Just stick to your story."
Schaefer told the jurors to disregard the statement, but Horne said it was the juror who said he heard that conversation who wanted to acquit. Horne said the juror questioned the girl's credibility.
Prudden later said her daughter was nervous, so she told her to just tell her account the way she had in the past.
Whittey is a five-time felon, though prosecutors couldn't tell that to jurors.
Besides the child-sex abuse conviction in Florida, he was convicted of burglary and aggravated assault on a child in New Hampshire, Bergen said.
Whittey was convicted in 1997 on charges that he touched a mentally disabled neighbor child in a sexual manner. He was sentenced to seven years in prison, but his sentence was cut almost in half after a sentencing law was overturned.
The victim in the 1996 case, now 17, testified about that incident.
Though Justiniano acknowledged that the girl's testimony didn't help the defense, she tried to turn it to Whittey's advantage in her closing by telling jurors: "Why was she brought in? Because the state had a weak case and they had to fix it somehow."
Prudden has sued the apartment complex, claiming officials were negligent when they hired Whittey.
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