ST. THOMAS — Calvert White, the former Sports, Parks and Recreation commissioner, has filed a motion seeking a new trial.
Filed today by defense attorney Clive Rivers, who represented White during trial, the motion argues that White’s right to a fair trial was compromised when Judge Mark Kearney allegedly made a factual determination that should have been left to the jury.
“The existence and effect of certain communications presented a factual question that was decided by the trial court instead of the jury,” the motion states. “This is grounds for a new trial.”
White’s legal team contends that the judge answered a “question of fact,” despite sufficient evidence being presented that should have allowed the jury to deliberate on the matter, according to the filing.
“The trial judge invaded the province of the jury when it answered a question of fact although there was sufficient evidence to establish an inquiry that was for the jury to decide,” the motion states.
The motion comes almost two weeks after a 12-member jury found White and his co-defendant Benjamin Hendricks guilty of honest services wire fraud and bribery concerning programs receiving federal funds following a four-day trial in District Court.
The motion centers on a question the jury posed to Kearney on July 25, after entering deliberations the day before.
Written on a piece of paper by the juror foreperson, and read aloud in court by Kearney, the question read: “Is it common knowledge that text messages, WhatsApp messages or phone calls between individuals in the Virgin Islands use networks, systems or servers outside the Virgin Islands and constitute a wire transaction in interstate commerce?”
Rivers argued that the question called for fact and therefore could not be answered by the judge.
“They are asking us a fact question,” Rivers said in court.
“I respectfully disagree,” Kearney responded.
The jury was then brought into the courtroom, where Kearney told them that he did not get involved in questions of fact, but that he could tell them about the law.
“The use of telephone, internet, text messages, email, or other similar means of communication qualify as interstate commerce under the law,” Kearney said in answering the jury’s question.
In his motion, Rivers also requests additional time to file a more detailed memorandum in support, after he receives the trial transcripts, which have already been ordered and are pending delivery.
