State prosecutors plan to retry the case of a Colchester surgeon accused of sexual assault. A mistrial was declared in the Joseph Abate trial Friday after jurors failed to reach a consensus, and that outcome surprised some Vermonters.
"I thought it was a no brainer. I really did," said one woman from Essex. "It was just too big I think for the jurors to consider. Seven people, they were trying to line up all the ducks in a row," added a man from South Burlington.
The trial lasted nearly three weeks and the deliberations strung out for four long days. But in the end, jurors failed to determine whether Dr. Abate was guilty of sexually assaulting seven female patients.
"It sounds like from what the jurors said that they thought he did stuff that was wrong, but they didn't think it rose to the level of a criminal offense," said Cheryl Hanna, a professor at the Vermont Law School. Hanna believes the Abate trial boiled down to a battle of credible medical experts with varying opinions, and she says a lack of consensus among doctors is what caused the jury to split its vote. Defense attorneys were able to cast doubt on whether Dr. Abate's questionable actions rose to the level of sexual assault.
"Eric Miller's point in closing arguments was exactly what he wanted them to hear. Let them sue him civilly. Let him pay money. Let the insurance company settle, but my defendants not the kind of guy that belongs in jail with the other monstrous sex offenders you've seen tried over the last few years."
Jurors told Channel 3 that that the not guilty votes outweighed the guilty votes on all seven counts: seven to five not guilty on three of the counts, eight to four not guilty on three others, and 10 to two not guilty on one count.
"So clearly it was a very conflicted jury here," said Hanna. Six of the jurors were men and six were women and most were older. That's something Hannah says may have helped the defense. "It's not clear to me what effect the age of the jurors had on this except that they may have been more likely to put their faith in the medical profession than see the harm to these young women," she said.
Prosecutors say they will likely retry the case, as early as next fall. That will give both sides time to polish their arguments and to select a new jury. There could also still be civil suits filed against Dr. Abate in addition to another criminal trial. It also remains to be seen how many of the alleged victims will be willing to testify again.