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Earnest will get new trial after judge confirms jury saw journals of Jocelyn Earnest

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By Tom Wilmoth

With a unanimous “yes,” jurors from this past spring’s trial who found Wesley Brian Earnest guilty of murdering his wife in December 2007 told Judge James Updike Monday that they had viewed evidence that wasn’t supposed to be given them during their deliberations in April.

    That revelation led the Bedford County Circuit Court judge to declare a mistrial in the case and set aside the guilty verdict that the six-man, six-woman Bedford County jury had levied against Earnest. A new trial has been set for Nov. 8, but where that trial will be held will be determined at a later hearing. Prosecutors are hoping the new trial will be held in Bedford while Earnest’s attorney, Joseph Sanzone, said he will ask for a change of venue, because of the publicity surrounding the case.

    Earnest, 40, didn’t get everything he had hoped for at Monday’s hearing. Though he no longer stands convicted of murder, he will remain in jail in Lynchburg pending the new trial. Judge Updike ruled that Earnest, who had been free on bond prior to the conviction, now posed a greater flight risk and should be held in jail without bond because he has seen the evidence against him.

    The hearing was a result of a posting on a news account of the case in which someone claiming to be a juror in the case defended the verdict, stating that the jury had read journals written by Jocelyn Earnest. Those journals were never admitted into evidence during the trial and at least one of the journals had been ruled inadmissible as evidence.

    In making his ruling, Judge Updike, who was on vacation when news of the journal issue came to light, referenced a 1981 case in which a jury had been shown 90 photographs that hadn’t been entered into evidence. The verdict in that case was eventually thrown out because of that.

    Judge Updike assured the jurors who attended the hearing — most, but not all were there Monday — that they hadn’t done anything wrong in viewing the journals that had mistakenly been sent back to them during deliberations. He said it was his responsibility to make sure the trial was conducted properly. “That was my job,” he said.

    He said he opened one journal and quickly determined that if the jury had seen them that he had to declare the mistrial. In that reference, which had been marked with a tab, Jocelyn Earnest had written  about where her body could be found if she was missing. “After I read that I didn’t read any more,” he said of coming to his decision.

    The four sets of journals had been marked for identification, but were never actually admitted as evidence. “They should have never gone back,” Judge Updike said. “I do not know exactly how they got back there.”

    He said the court staff and officers work hard and were conscientious in their work during the trial. He said whatever happened was the result of an accident. “It was a mistake,” he said. Judge Updike said the court process will be reviewed to ensure that a similar incident doesn’t happen in the future.

    He praised the jury for their service during the 10-day trial.

    Bedford County Commonwealth’s Attorney Randy Krantz stated during the hearing that he agreed that if the journals had been read by the jury that the mistrial should be declared. Once that fact had been established, the prosecution didn’t argue against setting aside the verdict.

    Sanzone said during the hearing that he plans to further challenge the fingerprint evidence in the case — a key piece of evidence in the first case for the prosecution — using recent rulings and information presented on that subject.

    Prosecution witnesses in the first case testified that the only fingerprints found on an alleged suicide note by Jocelyn Earnest’s body belonged to Wesley Earnest. The prosecution argued that Wesley Earnest had traveled from his home in Chesapeake on Dec. 19, 2007, shot his wife and planted the note to make it appear to be a suicide.

    Jocelyn Earnest was found dead in her home by a friend on Dec. 20, 2007. Wesley Earnest was arrested and charged with first degree murder in the case in Feb. 2008. The trial was held more than two years after his arrest. The prosecution’s case was based on circumstantial evidence, including the fingerprint evidence as well as Wesley Earnest’s actions following his wife’s death. The couple were in the midst of a contentious divorce at that time.

    A hearing on the request for a change of venue and the challenge of the fingerprint evidence was expected to be held soon after the defense files those motions.

    Sanzone had argued that his client should be granted bail because he had not caused any problems during the trial and had proved that he wasn’t a flight risk. But Assistant Commonwealth’s Attorney Wes Nance opposed Earnest being released, stating that the commonwealth had presented a strong circumstantial case. Judge Updike agreed.

    “The risk of flight in this case is dramatically increased,” Judge Updike stated, adding that no amount of bond could be set to secure his attendance.

    After Monday’s hearing, Wesley Earnest’s mother, Patricia Wimmer, insisted her son is innocent, adding she was disappointed he wasn’t released on bond. “I am glad there will be a new trial,” she said, adding that she hopes her son will be able to receive a fair trial. “We’re all disappointed that he’s not able to go home with us.”

    She said her son has lost a lot of weight while being held in solitary confinement since his first trial. “I just want to talk to him,” Wimmer said.

    Wimmer also said that she wants the trial to be held somewhere else in November. “I feel he can’t get a fair trial in Bedford County,” she said. “My son is not guilty. He is innocent. ... He loved Jocelyn.”

    Jocelyn Earnest’s family didn’t stop to make any comments about Monday’s ruling while leaving the courthouse. They were visibly upset when the mistrial was declared. But Nance said the family’s demeanor was “resolute.”

    “Certainly there’s some disappointment,” he said, adding however, that the family had been encouraged by the results of the first trial.

    “Are we disappointed this happened?” he asked. “Absolutely. We’re disappointed for the jury, we’re disappointed for the taxpayers, for the investigators, for the witnesses. But most of all -- for the family. But we know the judge did the right thing today.”

    Nance also said he wants a Bedford County jury to hear the case against Earnest at the trial in November.

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