Allegheny County District Attorney Stephen A. Zappala Jr. is reviewing the actions of a court employee whose discussions with a jury during deliberations led to a new trial for a former Carnegie Mellon University professor convicted of shooting at two Mt. Lebanon police officers, a spokesman said Tuesday.
But prosecutors are limiting their review of tipstaff Mary Feeney's actions to the case involving Edward Constant II, who is scheduled to go on trial a second time later this month before Common Pleas Judge David Cashman, said Mike Manko, Zappala's spokesman.
"We have no cause to review other cases in Judge Cashman's courtroom," Manko said.
Feeney, who has worked for Cashman for 13 years and is paid $33,718 annually, could not be reached for comment. Testimony at a hearing July 20 before Judge Donna Jo McDaniel revealed Feeney discussed the meaning of criminal intent with jurors, who were deliberating Constant's fate.
Feeney asserted her Fifth Amendment right against self-incrimination during the hearing into the incident.
The jury convicted Constant April 2 of two counts of attempted murder and related charges.
Constant, 61, of Mt. Lebanon, was sentenced in June to serve 14 1/2 to 29 years in prison for the point-blank shooting May 26, 2002, of Officer Daniel Rieg. A bulletproof vest spared Rieg serious injury. Another shot missed Officer Jeff Kite.
In an interview, attorney Patrick Thomassey said Feeney, his client, is not under criminal investigation. Cashman rejected her resignation after the incident came to light.
"It's an absolute innocent mistake," Thomassey said. "Mary has been a good employee for I don't know how many years, and there's never been any problem with her."
Shortly after Cashman sentenced Constant to prison, juror Patricia Clark told defense lawyer Paul Boas in a letter that Feeney discussed the meaning of criminal intent during deliberations. Nine other jurors had varying recollections of Feeney's actions in the jury room.
In ordering a new trial, McDaniel ruled that Feeney's actions had created "a high risk of prejudice" for Constant.
"She was asked a question by a juror, and she responded to that question," Cashman said Tuesday. "In 20-20 hindsight, she should have referred the questions to me. Did she make a mistake⢠Yes. Was it wrong⢠No."
But others say the allegations involving jury tampering cannot be brushed aside.
"It could be a terrible big deal," said James Shellenberger, a law professor at Temple University.
He noted that Feeney was charged with protecting juries from outside influence, and she had done the opposite in this case.
"If anybody should clarify something for the jurors, it should be the judge, and not a court officer," he added.
Furthermore, he said any such communication should take place in a courtroom with a court reporter present so that a record of what's said is maintained in case of an appeal.
"There's no stenographic record of what transpired here," Shellenberger said. "Even if the tipstaff got it right, we have no way of knowing that other than the recollections of the parties involved."
According to a transcript of the hearing before McDaniel, juror Clark recalled Feeney's asking if the jurors had voted on any of the more serious charges. Clark recalled the jurors told Feeney they were split on the vote.
According to Clark's recollection:
Feeney then asked for a show of those voting not guilty. Feeney turned to one of those not voting guilty and initiated a conversation "by asking who had voted not guilty and then asking one of those jurors what was the problem."
That juror said he was having a problem understanding what would form criminal intent. Feeney then led the jurors through scenarios involving the use of a gun that would demonstrate criminal intent.
The other jurors had similar recollections. One of them, Douglas Alpern, testified that "the intent issue was a major issue, and I think Mary was there quite a bit of the time, but I can't necessarily say how much she partook in it, of the conversation."
Boas has asked Cashman to recuse himself from presiding over Constant's new trial. Cashman has rejected that request.
Yesterday, Cashman said he still thinks he can rule in an impartial manner. He said Boas feels uncomfortable appearing before the judge on behalf of his client, but that doesn't mean the judge should refrain from hearing the case.
"He hasn't demonstrated any personal animus on my part that would require that I step aside," Cashman said.
Cashman said he had issued an order sealing the records in the case, including motions requesting a new trial and seeking his recusal, because he wanted to protect the "sanctity of the jury's deliberations."
Boas couldn't be reached for comment. Paul Messing, a Philadelphia attorney whom Constant's family asked to assist Boas on the case, said an appeal of Cashman's refusal to recuse himself is under consideration.
Constant remains in the Allegheny County Jail awaiting his new trial.
