An attorney for Glenn Doneghy, who was convicted last week of second-degree manslaughter in the hit-and-run death of Lexington police officer Bryan J. Durman, has filed a motion for a new trial.
Attorney Sally Wasielewski, in the motion filed this week, says jurors were allowed to walk freely around downtown Lexington during a June 30 lunch break — after deliberations had begun — when they should have been kept in a group and accompanied by a court bailiff. Wasielewski says this was a violation of Kentucky law.
Doneghy was charged with murder for fatally striking Durman, 27, with his sport utility vehicle on North Limestone on the night of April 29, 2010, as Durman was investigating a noise complaint. But the jury found Doneghy, 34, guilty of a lesser charge of second-degree manslaughter. Jurors also found Doneghy guilty of assault, leaving the scene of an accident, and drug charges in connection with the case.
"The rules of criminal procedure require that a felony jury be kept together and under the eye of a bailiff during their deliberations, unless the parties agree otherwise," Wasielewski said Wednesday.
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Defense attorney Kate Dunn, in an affidavit filed with the motion, says Fayette Circuit Judge James Ishmael called her about 1 p.m. June 30 and told her he had decided to allow the jurors to go out to lunch at their request and return to the courthouse to continue deliberating at 2:30 p.m.
"Judge Ishmael did not advise me that the jury would be on their own without a bailiff or any kind of guard, nor did he advise that the jurors were not ordered to stay together during lunch break," she says in the affidavit.
Defense attorney Gayle Slaughter, in another affidavit, says Ishmael came up to her outside the courthouse during the lunch break and told her he made the decision to allow the jurors to go to lunch unescorted.
"It is not that we think the jurors have done anything wrong; it is just that, in my opinion, this is a gross procedural error," Wasielewski said Wednesday.
"I've tried cases in Meade, Breckinridge, Hart, LaRue and Fayette counties, and I have never seen a felony jury simply allowed to go out to lunch unsupervised and not kept together as a group," she said.
The defense attorneys say they saw groups of jurors having lunch at Della's restaurant and at Shorty's in downtown Lexington. The attorneys say they also saw two jurors walking on Upper Street unaccompanied by a bailiff and a lone juror talking on her cell phone as she walked toward the courthouse.
Wasielewski says Commonwealth's Attorney Ray Larson, in his closing arguments at the trial, told the jury that "the police have been waiting, waiting and listening for what you are going to do."
Allowing jurors free rein to walk around downtown Lexington, where they could not help but be aware of the presence of Durman's colleagues, reinforced Larson's statement about the police watching and waiting, an inference that the jury do the right thing by convicting Doneghy, Wasielewski says in the motion.
Dunn, in her affidavit, says that during the lunch break she stopped a police officer who had secured his bicycle to a light pole outside Della's and started to go inside the restaurant, telling him that jurors were inside. The officer left.
"Had the jury been kept together at a local restaurant, under the supervision of a bailiff, this motion would not be before the court," the motion states. What took place was a clear violation of rules and has denied the defendant a fair trial, it reads.
The jury convicted Doneghy about three hours after the lunch break.
Doneghy is scheduled to be sentenced Aug. 19. The jury recommended that Doneghy serve a total of 30 years in prison.
The motion for a new trial is expected to be discussed at a hearing Friday.