Verdicts reversed in five slayings

High court cites juror’s remarks

The Arkansas Supreme Court on Thursday threw out five capital murder convictions, and the accompanying five life sentences, that a Garland County jury imposed last year against Samuel Lee Conway of Hot Springs in the 2009 slayings of five Percy residents.

Although Garland County Prosecuting Attorney Steve Oliver promised Thursday that he will retry Conway, a Florida woman whose father, brother, sister-in-law and nephew were killed says she blames Oliver and the judge for the mistake that led to the convictions being overturned.

The Supreme Court sided with arguments made byLittle Rock appellate attorney Janis Vaughan. Vaughan said Conway’s right to a fair trial was thwarted when Circuit Judge Homer Wright refused to dismiss a juror who said near the end of testimony that he had made up his mind about Conway’s guilt, telling the judge, “I don’t think I can be a fair juror anymore.”

A jury instruction that judges regularly read to jurors in criminal cases before testimony begins advises jurors not to make up their minds about the guilt or innocence of the defendant during the trial. It also admonishes them to “keep an open mind” until they retire to the jury room to deliberate.

The juror signaled to a bailiff that he needed to talk to the judge after the prosecution had presented 43 of 44 witnesses and about 180 pieces of evidence. The only remaining witness was a firearms and tool-marks examiner. The defense didn’t present any witnesses.

The juror told the judge,“Basically, due to the testimony and the pictures I’ve been seeing, I haven’t been getting any sleep. ... I’ve basically made up my mind about it. And I’ve gotten to the point to where I’m sleeping with one of my shotguns loaded beside my bed ’cause of the testimony I’ve been hearing. That’s basically - it’s bad saying it, but I’ve made up my mind about the case already this early.”

Defense attorney Madison “Pat” Aydelott of Little Rock moved to dismiss the juror based on his inability to be fair and impartial, but the judge denied the motion, saying, “I don’t think he’s expressed anything other than the fact that he has formed an opinion, which you have acknowledged jurors do, then they go in and discuss it.

“If he reported that he refuses to deliberate ... once the case is submitted, that is another matter,” the judge continued. “But I do not think that anybody can sit through three days of testimony and not begin the formation of an opinion. That’s just contrary to human nature, and I think our process envisions that as the evidence is presented, ajuror assimilates it.”

Aydelott later renewed his motion after all the evidence was in, saying he had noticed that the juror “is not listening ... he is not taking notes. I think he’s biased. It’s possible he could taint the jury pool.”

The judge again denied the request.

Oliver said he suspects the juror was simply frightened after hearing testimony of a grisly nature - that the victims were beaten and shot repeatedly before their bodies were set on fire in an effort to destroy evidence of a burglary.

Smarting from the first reversal of a conviction in his 18-year career as a prosecutor, Oliver said he thinks the ruling exposes a flaw in a relatively new addition to Arkansas jury instructions.

He said the instruction admonishing jurors to avoid deciding the case until testimony is complete is intended to ensure they remain openminded and don’t discuss the case until deliberations begin. But it can’t keep a juror from forming his own thoughts about what he has heard, he said.

“It is absolutely ludicrous to think that 12 jurors hadn’t already made up their minds by the time they’ve heard 43 witnesses,” Oliver said.

The Supreme Court opinion, written by Associate Justice Karen R. Baker, noted that “the right to a jury trial guarantees the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”

Baker cited a previous case, State v. Cherry, in which the court held that a defendant was denied a fair trial because jurors had pre-judged his guilt. In that case, the court said, “For even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury.”

Oliver said the Cherry case involved jurors who discussed the case amongst themselves before the case was over, which is a different situationthan in the Conway case.

The Supreme Court, however, noted that the juror in Conway’s case sent a note to the court “during the prosecution’s presentation, not after the completion of theevidence. The defense had not made any presentation, but [the juror} remained on the jury after he stated he had made a decision, ‘was solid,’ and could not deliberate.

“The critical fact is that [the juror] unequivocally stated that he could not be fair and impartial and that he could not deliberate, yet he remained on the jury,” the opinion said.

Aydelott said he will ask that Conway be freed on bond before his next trial date - an unlikely scenario, given that defendants who present a danger to the community are usually detained until trial.

Oliver said he understands the victims’ family members feeling that “first they’re victimized by Sam Conway, and now by the jury system.”

“I feel for them,” he said. But he said he has no concerns that a retrial will be harder to prosecute than the first trial, even if some of the original witnesses cannot be found.

Jurors convicted Conway on June 18, 2011, of five counts of capital murder, for which the state didn’t pursue the death penalty, two counts of aggravated residential burglary and four counts of theft of property. All the convictions were thrown out Thursday.

The bodies of Jeremy Gentry, 24; his girlfriend, Kristyn Warneke, 19; and his parents, Pamela Gentry, 52, and Edward Gentry, 56, were found Nov. 12, 2009, by firefighters responding to an early morning fire in a mobile home on Old Airport Road.

The Gentrys were living in the mobile home on property owned by Edward Gentry’s father, 30-year military veteran and retired nurse Edward Gentry Sr., 80, whose body was found inside his house on the same property a few hours later.

The elder Gentry, a recent amputee who was awaiting a prosthetic leg to replace one lost to cancer, had been bound, gagged, beaten and shot. His stolen truck was found burned and abandoned in Hot Springs the same day.

His daughter, Pam Taylor, who lives in Florida, said she has long been frustrated by the way the case was handled, particularly about a gag order that kept the public from knowing many details about the case.

Northwest Arkansas, Pages 9 on 11/09/2012

Upcoming Events