Improper wording voids verdict Justices throw out sex crime conviction

PORTLAND – The wording of a jury verdict form prompted the Supreme Judicial Court Thursday to throw out an unlawful sexual contact conviction in Aroostook County.

The justices agreed that the form used during the June 2005 trial could be interpreted as shifting the burden of proof to Gary McNally and depriving him of the presumption of innocence.

The form, used for each of the two counts against McNally, said “…the jury finds unanimously and beyond a reasonable doubt that the Defendant is: GUILTY —– NOT GUILTY —–.”

Although only one verdict form was sent into the jury room, each juror was given a copy of the form during the judge’s instructions and could read it as the process was spelled out.

The court agreed with McNally’s claim that the form impermissibly suggested that jurors could find him not guilty only if his lack of guilt was established by proof beyond a reasonable doubt.

That suggestion, the supreme court said, was reinforced by the judge’s verbal explanation that the question for count two on the verdict form “is whether you find beyond a reasonable doubt that unlawful sexual contact has occurred with regard to [the victim] or not.”

“Considered together, the verdict form and the instruction are inconsistent with the principle that the presumption of innocence alone is sufficient for a jury to acquit a defendant,” Justice Jon Levy wrote.

It was not immediately clear if the ruling could affect other convictions. The Aroostook County Superior Court clerk in Caribou, Vicki Harris, said she did not know whether the jury verdict form used in McNally’s case was used in other trials.

In 2004, McNally was charged with having unlawful sexual contact with two sisters, then 10 and 11. He was found guilty on one count and not guilty on the other. He was ordered to serve six months of a 30-month sentence, but it was held in abeyance pending the appeal.

Prosecutors involved in the case could not be reached immediately for comment on whether McNally will be retried.