Barry Scott to appeal ruling on juror to SJC

Barry Scott, the openly gay Lost 45s DJ who was convicted last month of disturbing the peace, resisting arrest and violation of a noise ordinance while spinning at a private party in Provincetown last summer, told Bay Windows he will file an emergency appeal within the next week to the Supreme Judicial Court (SJC) asking to be allowed to interview one of the jurors who decided his case.

The day after Scott's July 23 trial in Orleans District Court he received an e-mail from someone purporting to be one of the jurors in the case. Over the course of a brief e-mail exchange the alleged juror told Scott he did not believe Scott was guilty, and he admitted to talking about the case with one of the alternate jurors, which is illegal. The alleged juror also expressed dislike for "summer cops," which Scott argues puts the juror's impartiality in question; some of the officers involved in Scott's arrest were summer officers hired by Provinctown to fill out the force during the tourist season. Scott filed motions earlier this month with Judge Brian Merrick, who presided over Scott's trial, asking both to poll all six jurors who heard the case and to be granted permission to interview the juror who e-mailed him. Merrick rejected both requests, prompting Scott's appeal to the SJC.

"We brought this to Judge Merrick twice now and he's denied us the opportunity even to talk to this juror. He knows that this is illegal and yet he's denied it twice. ... So now we're appealing above his head, going to the Supreme Judicial Court," said Scott. Merrick formally denied Scott's request to interview the juror August 27. He ruled against Scott's motion to poll the jury on August 5.

In denying the request to poll the jury Merrick wrote that the alleged juror's e-mail does not undermine the validity of the verdict.

"The statement by the putative Juror no. 7 that he was 'the only one who said not guilty' does not call into question the validity of the verdict. The usual inquiry to the jury ('So say you, Mr. Foreman? So say you members of the jury?') was made and elicited unanimous verbal or nodding expressions of assent. Certainly, no dissenting vote was expressed by word or deed," wrote Merrick.

He argued that the alleged bias of the juror and the alternate who he spoke with had no impact on the outcome of the case since the juror's bias was in Scott's favor and the jury as a whole ruled against him.

Scott was arrested while DJing a private party in June 2007, after police went to the home a third time in response to a noise complaint. Scott alleges that the police brutalized him during the arrest, leaving him with a gash in his nose and injuries to his leg and foot.

Scott said he has not yet decided whether to appeal the jury verdict, but he will wait to make that decision until after the resolution of his request to interview the juror.