The Supreme Court this week upheld a Lyon County judge’s order granting a man a new trial on child sexual assault charges.
A jury convicted Barry Newpher, and Senior Judge Robert Estes sentenced him to life in prison. Newpher filed a petition for a writ of habeas corpus, and District Judge William Rogers agreed defense counsel was ineffective for letting jurors have a CD containing prejudicial statement by the victim’s mother during deliberations — especially given that she did not testify at trial.
Prosecutors appealed, arguing that the defense counsel’s performance was deficient but that there was no prejudice.
The high court’s order says the jury “was able to listen to the victim’s mother deliberately attack Newpher’s credibility and reputation and vouch for the victim.”
It further states that “Sending (unplayed) tapes to the jury room is akin to allowing a new witness to testify privately, without cross-examination, to the jury during its deliberations.”
It concludes that the defense lawyer also was deficient because he failed to file a timely motion for a new trial.
The high court panel of Kris Pickering, Jim Hardesty and Michael Cherry agreed with Rogers that the primary evidence against Newpher — the victim’s testimony — “was not overwhelming and was often inconsistent and contradictory.”