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National Perspective | THE LAW

Lone Juror's Change of Heart in Child Molestation Case Tips Scales of Justice

Man takes extraordinary measures to reverse verdict after giving in to peer pressure to convict.

March 10, 1998|BARRY SIEGEL | TIMES STAFF WRITER

James Thomas was no legal neophyte when called to jury duty last May in Dalton, Ga. A 69-year-old chemist and businessman, president of All Purpose Adhesive Co., he'd been a juror and party to more than one civil suit. He'd never seen the insides of a criminal trial, however. It was, to him, a revelation.

The case involved Wayne Cservak, charged with molesting his girlfriend's 13-year-old son several times over a two-week period. Before going to trial, Cservak, 21, had refused the prosecutor's plea bargain offers, insisting he was innocent. After listening to two days of testimony, Thomas agreed.

He found the 13-year-old's testimony contrived, his attitude cavalier, his details inconsistent. By contrast, he thought Cservak candid and believable. He sensed a setup. "Throughout the trial," Thomas says, "on all the counts listed by the state, I had reasonable doubt."

His fellow jurors, however, saw it otherwise. So began Thomas' exceptional brush with the legal system, and with his own sense of moral responsibility.

In their first tally, seven jurors voted to convict. Thomas argued vigorously for acquittal, but by the next morning, it was 11 to 1. "Alone," is how Thomas felt. "I was browbeaten. They were pretty nasty. Calling me a foggy old coot. I'm hard of hearing from the Korean War, and they were saying, 'Are you sure you heard everything that went on at the trial?' In my own mind, I felt I had to go along or turn them. And I was turning nobody. So I collapsed, said OK. Didn't feel good about it, though. Felt there'd been a miscarriage of justice."

Back in the courtroom, as the jury announced its verdict, Thomas watched Cservak break down in tears, then almost have to be carried from the chamber. Cservak's mother and brother cried, too. An aunt rose and told the jury: Thanks for convicting an innocent man. That moment didn't sit well with Thomas. He'd been raised in a Catholic home; he'd attended parochial schools. He believed he had to act. "I was a juror, and I helped make a wrong," he says. "It had to be righted."

Days later, Thomas wrote the trial judge, beseeching him to show mercy in his sentencing: "I feel strongly that Wayne Cservak stood wrongly accused, but gut feelings don't count in the real world." Then he showed up at Cservak's sentencing hearing, again pleading for leniency. Thomas' efforts apparently paid off. Under Georgia law, Cservak could have drawn a 100-year sentence; instead, he got the minimum, 10 years without possibility of parole.

Still, Thomas didn't feel right. Standing in the courtroom at the hearing's end, he learned that Cservak was entitled to appeal, but he couldn't afford to keep paying for a lawyer. Thomas knew a lawyer in town who was pretty good, he thought. Best in town, in fact. He chewed on that for only a moment before speaking out. "I can't go for a high-priced big city attorney from Atlanta," he told Cservak's mother. "But I'll hire the best attorney in Dalton. I'll pay for it out of my own pocket."

That lawyer, Thomas soon learned, would cost him $6,500 to start, with the prospect of much more if they ever got to a second trial. "I talked to my kids about it," Thomas said later. "It was their inheritance. They said, 'Go for it, Dad.' "

So he did. The lawyer Thomas hired, Robert Adams, filed a motion for a new trial, which came to a hearing on Dec. 17. There Thomas testified on Cservak's behalf. The prosecutor at trial had been "aggressive and vociferous," he declared, while the defense attorney "corroborated or reiterated everything that the state said." During jury deliberations "Cservak was being railroaded. . . . I had 11 people scolding me for being a kind of stupid old man." Cservak "deserved a break." Cservak was "innocent of the charges."

It didn't matter; Judge William Boyett wasn't interested in anything Thomas had to say that day. In the interests of "finality" and "sanctity of deliberations," jurors in Georgia aren't allowed to impeach their own verdicts.

Yet if Thomas' thoughts didn't matter, his wallet surely did. As the hearing unfolded, it became ever more clear that Thomas had bought Cservak what he'd sorely lacked the first time around: A top-notch lawyer. Adams took Cservak's original defense attorney apart on the witness stand. By the time he finished, Boyett felt obliged to agree. Cservak's trial attorney had provided ineffective counsel, thereby depriving the defendant of his 6th Amendment rights under the U.S. Constitution.

The judge particularly found it "troublesome" that the trial attorney had failed to explore fully that another man then living in the 13-year-old boy's house--and sharing his bedroom--was a convicted child molester. The lawyer had somehow managed not to notice the molestation convictions, which were readily available in Whitfield County Superior Court files.

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