By Ken Serrano
Home News Tribune
June 11, 2008
http://www.mycentraljersey.com/apps/pbcs.dll/article?AID=/20080611/NEWS/80611024
MIDDLESEX COUNTY —The state Supreme Court on Wednesday upheld a lower court ruling that gives a new trial to an Edison piano teacher accused of molesting a 9-year-old girl, saying a jury should have heard testimony that the defendant suffers from Asperger's disorder, a mild form of autism.
Franklin "Jack" Burr II, 62, was convicted in October 2004 of sexual assault and endangering the welfare of a child. Assaults were alleged to have taken place in Edison when the girl took lessons with Burr at East Coast Piano and later at the Jewish Community Center, where Burr rented space to conduct his classes. Burr was accused of inappropriately touching the girl.
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| Franklin "Jack" Burr II, 62 |
In May 2007, a state appeals court decided that trial court Judge Phillip Paley, sitting in New Brunswick, erred when rejecting a defense request to allow medical testimony on Burr's diagnosis of Asperger's disorder.
Defense attorneys contended the disorder affects Burr's appearance, body language and motions, as well as his behavior and interaction with people.
During Burr's trial, witnesses testified that Burr had the 9-year-old and another student sit on his lap. Prosecutors said Burr was "grooming" the children for sexual abuse.
The appellate court in last year's ruling said that testimony on Asperger's disorder could have negated that inference in the minds of jurors and affected the verdict.
The Supreme Court ruling Wednesday went 6-0. Chief Justice Stuart Rabner did not participate.
Justice Jaynee LaVecchia wrote in a 20-page decision, "In our view, the evidentiary ruling on the Asperger's disorder testimony denied defendant access to evidence that was relevant and material to his explanation of himself and his conduct."
Burr's attorney, Vincent Sanzone Jr. of Elizabeth, said: "I'm very grateful that our Supreme Court has taken a progressive view with regard to defendants suffering from mental disabilities, which in this case is Asperger's disorder."
The state's highest court also ruled that a jury is allowed to see a replay of a videotaped pretrial interview with the 9-year-old girl, but the trial judge should first inquire whether jury members would be satisfied with testimony alone being read back to them. If they insist on seeing the videotape, the judge should weigh that request
against the fairness to Burr. A readback of cross-examination testimony of the girl might also be necessary to balance what the jury hears and provide "proper context," the high court ruled.
Burr was sentenced to six years and served time at East Jersey State Prison before being released by the court on bail in August 2007.
At the time of Burr's arrest in 2004, he was on probation on a 2002 endangering conviction stemming from an incident years earlier in which a 12-year-old Metuchen guitar student accused him of molesting her.
Burr pleaded guilty to that endangering charge when the state agreed to dismiss a sexual-assault charge. A condition of probation at the time was that he not have unsupervised teaching sessions with girls younger than 16.
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