Earnest to get new trial; attorney to seek new venue

The former teacher and administrator convicted this spring of the 2007 slaying of his estranged wife will get a new trial, a judge ruled Monday morning. But if Wesley Earnest gets his wish, that trial won’t be in Bedford County.

The new trial has tentatively been set for Nov. 8.

Before the end of Monday’s hearing, Joseph Sanzone, Earnest’s lawyer, told the court he will soon file a motion for a change of venue. Sanzone said he also plans to ask the judge to allow witnesses to attack the reliability of the fingerprint evidence used to convict Earnest the first time.

Patricia Wimmer, Earnest’s mother, said after the hearing that the change of venue should be inevitable and probably should have happened in the first trial because of the publicity surrounding the case.

“He couldn’t go into a McDonald’s without being recognized,” Wimmer said.

Wesley Earnest was convicted in April of the first-degree murder of Jocelyn Earnest after nine days of testimony and a final day of deliberation. He will remain in jail until his new trial.

Jocelyn Earnest’s body was found at her home in Forest on Dec. 20, 2007. Prosecutors claim her husband ambushed her, shot her in the head and staged the scene to appear as if she killed herself. They said he planted a purported suicide note, but made the mistake of leaving his fingerprints on that note.

At the request of both the prosecution and defense lawyers, the jury’s verdict was nullified Monday after 11 of the 12 jurors in the case told Judge James Updike they had examined Jocelyn Earnest’s journals in their deliberations. Updike had excluded the journals from evidence in a ruling nearly three weeks before the trial.

A 12^th juror had been subpoenaed, but was allowed to miss the hearing on Monday because of extenuating circumstances, the judge said.

Deputy Commonwealth’s Attorney Wes Nance said after the hearing that although a change of venue may serve Wesley Earnest’s interests, he will contest the move.

“I believe Bedford County jurors could still hear the case,” Nance said.

Lynchburg Commonwealth’s Attorney Michael Doucette, who has not been involved in the Earnest case, said he could not remember a case being moved out of the circuit since a murder and rape case in Lynchburg in the late 1980s. In the most high-profile case preceding Earnest’s, a jury panel from Nelson County was brought in to hear Jens Soering’s 1990 trial in Bedford County on charges he murdered Derek and Nancy Haysom.

Called a change of venire, Sanzone said he would oppose any move to bring in a jury panel from elsewhere to rehear the case in an effort to find jurors untainted by media coverage.

“People have a hard time focusing when they’re displaced,” he said after the hearing.

Even if the defense wins its request to move the case, that might only happen after Updike attempts to seat a jury in November. Although judges are given great discretion, it is unusual for a judge to decide to move a hearing before trying to seat a jury in the jurisdiction where the offense occurred.

“Jurors are not required to know nothing about the case,” Doucette said. “The law is such that even if they know something about the case, if they can set that opinion aside, they can sit on a case. The test is the ease with which an impartial jury can be seated.”

Regardless of where the trial is heard, Sanzone said he hopes to be able to pursue his original strategy of attacking the reliability of the fingerprint evidence. Updike did not allow those defense witnesses to testify at the first trial.

“In this case, I think it will be significantly different because the state of fingerprint law is changing,” Sanzone said after the hearing.

In a March order issued a few weeks before Earnest’s first trial, Boston-based U.S. District Court Judge Nancy Gertner wrote an order directing attorneys to expect to be questioned about the scientific reliability of fingerprint evidence. Sanzone said the new jury should be able to hear about the order and the 2009 National Academy of Sciences report that led her to write it.

While the lawyers in the case try to resolve these issues, Wesley Earnest will remain jailed. For his appearance Monday, he had changed out of the bright orange Blue Ridge Regional Jail Authority jumpsuit and into a dark suit without a tie. He was unshaven and had bags under his eyes.

Sanzone said Earnest has been held in solitary confinement at the Lynchburg Adult Detention Center since April 5, the day the jury returned a guilty verdict.

Though Updike reversed the conviction and noted that Earnest had done well on bond, he denied a bond request, saying Earnest’s “risk of flight has dramatically increased.”

Sanzone said there would be no time to appeal the bond decision before the trial.