Justices Call for New Trial for Convicted Man

An appeals court ruled Thursday that a man convicted of molesting his 10-year-old daughter should be granted a new trial because the lawyer who represented him was “ineffective.”

In a split decision, 4th District Court of Appeal Justices Thomas F. Crosby Jr. and Edward J. Wallin affirmed a decision by Orange County Superior Court Judge James R. Ross to grant James Harmon Stewart a new trial.

Ross ordered a new trial after concluding that attorney Peter Scalisi had failed to adequately counsel his client. Among other things, Ross found that Scalisi did not move to strike an entire jury panel after several prospective jurors said that Stewart fit their mental image of what a “pervert” or “child molester” looked like.

The lower court also found that Scalisi had failed to call Stewart’s son to testify when that testimony might have helped exonerate him and that the attorney had failed to “exercise sufficient diligence” in helping Stewart decide whether to testify in his own defense, according to the appellate court decision.

Stewart did not take the stand and later claimed that he had wanted to testify, according to the decision. Scalisi testified that he could not force Stewart to testify and that he believed that the decision was ultimately the client’s to make.

“Nothing is more critical in the usual child molestation case, where the victim’s testimony is frequently uncorroborated, than the question of whether a defendant should testify,” the decision said.

The two justices noted that Scalisi had prepared his case believing that Stewart would testify in his own defense. When Stewart backed out at the last moment, the attorney did not try hard enough to change his mind, they concluded.

But Justice Sheila P. Sonenshine dissented. She argued that Scalisi had not been incompetent and that Stewart should not be given a new trial.

She disputed the lower court conclusions that Scalisi should have moved to dismiss the entire jury and should have called Stewart’s son to testify. Moreover, her dissent said, “Nothing in the record establishes Scalisi failed to advise Stewart of his right to testify or that he prevented Stewart from testifying.”

Scalisi and Stewart’s new attorney, Thomas L. Brown, could not be reached for comment.