Last year, a judge ordered a mistrial in the case against the ex-maintenance worker.
By CHRIS TISCH
Published September 24, 2003
LARGO - One juror stood between James Whittey and a potential life sentence last year.
While five members of a jury wanted to convict Whittey of molesting a 12-year-old girl, one juror refused. After five hours of deliberations, a judge ordered a mistrial.
Whittey, 40, faced charges of burglary and child molestation. Authorities said Whittey was a maintenance worker at Fairington Apartments, 2738 Roosevelt Blvd., and used his key to enter a family's apartment. Then he molested a 12-year-old girl and left, authorities said.
Opening arguments in Whittey's second trial began Tuesday. The trial is expected to last two days.
The apartment complex had hired Whittey and gave him access to keys to all the apartments, even though he was registered with the state as a sex offender. After the arrest, an apartment complex official said the complex had done a background check on Whittey, but did not notice he was a sex offender.
During trial last year, prosecutors convinced five jurors that Whittey was guilty. But the sixth juror told the judge that, before the trial started, he heard the girl being comforted by her mother.
The juror said the mother told the girl to "just stick to her story." Because the juror heard that out of the courtroom, the judge told him to not consider it as evidence. But the juror would not vote to convict Whittey.
Though the girl's mother said she was just soothing the nervous child, Whittey's attorney has suggested the girl was being manipulated.
After opening arguments Tuesday, Whittey's public defender, Soraida Justiniano, told Judge Phil Federico she might call that juror to testify as to what he heard the girl's mother say.
"Obviously, this particular juror had a problem," Justiniano said. "He hung. He thought there was a credibility issue."
Federico said he would rule today on whether the former juror could be called to the stand, but he said he probably would not allow it because the juror's testimony would not be relevant.
During openings, prosecutor Stephanie Bergen told jurors there would be plenty of evidence to convict Whittey.
The girl is expected to testify that on May 30, 2001, she awoke to see a man in her closet. She recognized him as the maintenance man. He said he was there to fix a leak, then touched her private area, authorities said.
Bergen said Whittey left, leaving the door slightly open. The girl then woke her parents and told them the maintenance worker had touched her. Her mother called Pinellas deputies, who arrested Whittey.
Whittey's girlfriend is expected to testify that he went to the complex that night, though no work orders had been called, Bergen said.
"He had unbridled access to every single key to every single apartment in that complex," she said.
Justiniano countered by saying deputies did not find Whittey's fingerprints in the apartment, even though the girl pointed out areas he had supposedly touched. She suggested deputies rushed to arrest Whittey and did not seek other suspects, including a nearby tenant who has since been convicted of having unlawful sexual contact with a minor.
Justiniano said the girl has a history of nightmares, and she might have dreamed the traumatic event.
"There's no hair, no footprints, nothing at all to show somebody had been in that house," she said.
Whittey is a five-time felon, but prosecutors won't be able to 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 neighbor's 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.
If convicted of the current charges, Whittey would face 30 years to life in prison.
