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Hardin Circuit Judge Kelly Mark Easton granted the prosecutor’s motion Wednesday to dismiss the indictment against Steven Gray, the former Central Hardin High School teacher accused of having sexual contact with two female students and scolded the local commonwealth’s attorney.
Though the judge ultimately approved the motion, he identified in a written order several problems with both the statute the former teacher was accused of violating and the Commonwealth’s Attorney Office’s presentation of its case.
“Historically, such motions are rare,” the judge wrote about the commonwealth’s motion to dismiss Gray’s case without prejudice. “Yet this is the third such motion by the commonwealth’s attorney in the last six months in this division alone.”
The judge also stated the jury was deadlocked 10-2 in favor of conviction on one of the indictment’s two counts.
“Given the analysis in this order, the court believes that this case should be retried,” Easton wrote. “But the court does not prosecute cases; that is a decision for the prosecuting official.”
Easton requested a copy of his written order to be served to Attorney General Jack Conway’s office for review. Neither Commonwealth’s Attorney Chris Shaw nor Gray’s attorney Rob Eggert returned phone calls Monday.
When Assistant Commonwealth’s Attorney Heather Paynter presented the dismissal motion in court Jan. 10, she said she was “dismayed” by the jury’s inability to reach a verdict in the case. A written motion on the matter described the jury as “unwilling to return a guilty verdict despite the belief of his guilt.”
“I don’t believe the evidence in this case could be presented differently for a different outcome,” Paynter said during the January motion hour.
In his written motion, the judge came to the jury’s defense, identifying two instances where he believes the prosecutor could have acted differently.
“In the interest of the public confidence in our local criminal justice system, it would be fair for the Commonwealth’s Attorney’s Office to recognize opportunities to improve the presentation of the commonwealth’s case, rather than to express ‘dismay’ at a perceived failure of the jury,” Easton said.
During Eggert’s opening and closing statements, the attorney stated Gray had lost his job as a result of his behavior and never will teach again. Eggert also said the ex-teacher would be labeled a “sex offender” as a result of conviction.
The commonwealth did not object to these statements, which the judge called “irrelevant” in his written order.
During the first phase of the trial, a jury’s task is to determine the defendant’s guilt or innocence, Easton said. Such statements about future consequences have no bearing on the jury’s discovery but may distort its findings.
Easton also pointed out the struggle with the word “subjects” as used in Kentucky Revised Statute 510.110, the statute pertaining to Gray’s case.
The verb is used in multiple statutes pertaining to sexual offenses and, as defined by Merriam-Webster Dictionary, means “to cause or force; to undergo or endure.” It is not defined by Kentucky law.
“The commonwealth had to be prepared to persuade a jury that the defendant had ‘subjected’ the alleged victims to sexual contact,” the judge wrote. “The defense certainly understood this.”
Eggert raised issue with the word in his closing argument and the jury later requested a definition during its deliberations.
“You can’t subject people to something they wanted to do,” Eggert said. “You can’t subject somebody to something they schemed to do to begin with.”
Though the defense counsel commented on the word “over a dozen times” during his closing statement, Easton said prosecution mentioned “subjects” once and no explanation was offered on how to apply the verb to the facts of Gray’s case.
“Kentucky courts give the jury only the ‘bare bones’ of the law as instructions,” Easton wrote. “It is the duty of the attorneys to ‘flesh out’ those instructions for the jury.”
Regarding the language of the statute itself, Easton said it does not explicitly address consent as an issue, which creates a “substantial” problem for prosecutors. The KRS chapter regarding sexual offenses lists lack of consent as an element of the crime regardless of whether it was specifically stated.
“This court, along with several others in this state, has determined that the obvious intent of the statute was to remove consent as in issue,” Easton wrote. “Otherwise, the statute would have essentially no purpose, an interpretation that the law does not allow.”
“The legislature has declared its intent that teachers having sexual contact with their students is a crime and that teachers, not their teenage students, are to be held responsible,” he wrote. “This legislative decision recognizes that there is a difference between a teenager’s decision and that of an adult.”
Sarah Bennett can be reached at (270) 505-1750 or email@example.com.