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

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.

Other problems: The lawyer didn't know how to object to improperly admitted evidence; didn't know the significance of placing a witness' name on the subpoena docket; didn't call the boy's father and stepmother as witnesses. Their testimony, as it turned out, would have been favorable to Cservak, but instead jurors heard the boy's mother, who in response to a disastrous question posed by Cservak's lawyer, stated she believed her son. Taken together, the judge found that "counsel's representation fell short" of required standards. "The court must therefore grant the motion for new trial."

It never happened. One week later, the 13-year-old accuser informed prosecutors that he'd made up the story about being molested because he didn't want his mother to marry Cservak. That same day, the district attorney's office filed a motion to dismiss the case. Within hours, Cservak walked free, after sitting in jail for almost a year. Just like that, a proceeding that almost put Cservak away for life evaporated.

Prosecutors, Jurors Unwilling to Yield

In many quarters, Thomas is celebrated now, and thanked not just for saving Cservak, but also for protecting all of society from rendering a grave injustice. Yet the story is not quite so simple. A case may have been dismissed in Dalton, but as usual with charges of child molestation, a debate wages on.

At least some of Thomas' fellow jurors still feel they voted correctly, and still believe the 13-year-old's original testimony. So does Dist. Atty. Kermit McManus. The DA wants it known Cservak won a new trial not because he was innocent, but because a judge thought the defendant's trial attorney ineffective. The DA wants it known that physical evidence, including semen on a living room rug, corroborated the boy's initial statement. The DA wants it known that Cservak failed a polygraph exam. The DA wants it known that Thomas is so hard of hearing that witnesses and lawyers at the trial repeatedly were asked to speak up so he could hear.

"There's no question we had the right guy," McManus says. "All the evidence indicates the boy was telling the truth. The boy never wanted to testify, never wanted to talk about it. Basically, when he learned he would have to testify again, he didn't want to."

Responds Adams: "I never saw a prosecutor get wound up on a case who didn't keep wound up on it. . . . They're totally embarrassed by this."

On only one point does everyone in Dalton agree: Child molestation cases are a tricky business. Indeed. It is telling that at Cservak's original trial, the 13-year-old's mother testified in support of her son's credibility, while at the appellate hearing, the boy's father testified on behalf of Cservak. It is also telling that after the boy recanted, authorities filed a perjury petition against him, in Juvenile Court, even though McManus now pledges that the boy won't ever be prosecuted because "there was no perjury."

What to make of all this depends on which drum you want to beat. Child molestation charges invariably trigger intense, visceral responses that rise from personal philosophy as much as from hard evidence. Yet from any angle, there's undeniable merit to Thomas' conclusion: "With cases of child molestation, you better have the best lawyer in town."

In a sense, that's McManus' judgment as well. "Mr. Thomas did not win release of Cservak by changing his verdict," he fumes. "What he did was hire a lawyer to see what could be done." Just so. The real question here is: What happens in the countless unnoticed cases where there is no Thomas sitting on the jury, ready to back up his conscience with his wallet?

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