A Blaine County jury on Monday found Robert Joe Harrison Jr. not guilty of second-degree kidnapping, but convicted the former airport security guard of a lesser misdemeanor count of child enticement.
In finding Harrison not guilty of the more serious felony, the jury was in accord with a recommendation from 5th District Court Judge Robert Elgee, who exercised a rarely used courtroom procedure and advised the jury to acquit Harrison of the charge. Elgee's recommendation came in final instructions to the jury before deliberations were started.
Harrison was accused of offering a ride to a 10-year-old Hemingway Elementary School student in Ketchum on April 10 while the boy was walking home from school. Harrison then allegedly drove the boy to Harrison's home at the Cliffview Apartments in Ketchum, rather than to the boy's mother's place of work as the boy requested. After the boy refused to go into Harrison's apartment to watch a movie, the charges alleged, Harrison then let him go.
The eight-woman, four-man jury deliberated three hours before reaching a decision. The jury met for one hour after closing arguments late Friday afternoon, recessed for the weekend and concluded deliberations Monday morning.
The deliberations followed three days of testimony that started Wednesday, Sept. 20.
Prior to his arrest on April 11, Harrison, 50, was an airport security guard with the federal Transportation Security Administration at Friedman Memorial Airport in Hailey. Shortly after his arrest, TSA officials announced that Harrison had been suspended without pay.
A TSA official who attended the trial declined to provide her name but said that the agency has no comment on Harrison's current employment status.
In being acquitted of the second-degree kidnapping charge, Harrison will no longer face penalties under Idaho law of up to 25 years in prison and a $50,000 fine. With the misdemeanor conviction, he could face a $300 fine and up to 180 days in jail.
Elgee's non-binding advisement to the jury to acquit Harrison of the kidnap charge came at the request of Harrison's public defender, Kevin Cassidy, of the Roark Law Firm in Hailey, who said that the prosecution had failed to meet the burden of proof that a kidnapping had occurred.
Legal arguments regarding the advisement were made by Cassidy and Blaine County Deputy Prosecuting Attorney Warren Christiansen while the jury was not present.
Elgee appeared to struggle with the decision but said the boy had—according to the evidence—been released when he asked to be released and "that slams the door on kidnapping."
Christiansen vigorously protested: "If you give that instruction, I don't even know why I'm wasting my breath on arguing kidnapping, " he said.
In an unusually candid moment for a presiding judge, Elgee removed his glasses, wiped his brow and said: "I'll tell you what. This is what keeps me up at night. What's right is not always popular, and what's popular is not always right. Actions speak louder than words, so I'm going to give the instruction."
Elgee didn't explain his reasons to the jurors, but told them: "I hereby advise you, the jury, to find the defendant not guilty of kidnapping, and I advise you to acquit him."
Christiansen was critical of the judge's decision in his closing arguments to the jury.
"Mr. Elgee is advising you to acquit. Don't do that. Don't make that mistake. Don't give up on the kidnapping charge just because the judge thinks you should."
In convicting Harrison of misdemeanor enticement, the jury relied heavily on the testimony of the alleged victim, even though there were several inconsistencies in his identification of Harrison.
The boy originally told Ketchum police that the man who offered him a ride was driving a red car, but Harrison drives a red Dodge Dakota pickup. The boy originally said the man had a white moustache, but Harrison has a brown moustache. The boy originally said that the man appeared to be Hispanic, but Harrison is Caucasian. Finally, the boy said the man was wearing a "yellow or blondish" hat, but Harrison wears a "dark brown" cowboy hat.
In defending Harrison, Cassidy pointed out that no forensic evidence was found linking Harrison to the boy. The boy's fingerprints were not found in the vehicle, even though the boy acknowledged that he used the door handles.
Cassidy also claimed that the identification of his client was conducted in an unfair manner. Ketchum police used what is called a "six-pack" photo identification, which consists of a single sheet of paper with six different mug shots printed on it. Five of the photos had a white background, while the background of Harrison was blue. Also, the Harrison photo had the date of his arrest, April 11, 2006, in yellow lettering at the bottom, while the five other photos didn't have dates.
Ketchum police detective R. Scott Manning, who was the lead investigator in the case, said he advised the boy that a suspect had been arrested prior to showing the boy the six-pack.
Asked by Cassidy if he thought the photo lineup was conducted fairly, Manning said: "No."
Manning also acknowledged that he asked leading, rather than open-ended, questions when he talked to the boy about the alleged abduction.
"Don't convict an innocent man based upon the evidence the prosecution has shown here," Cassidy told the jury in closing arguments.
Sentencing for Harrison on the misdemeanor conviction was not scheduled but will likely be within 30 days.
Harrison left for the Walla Walla, Wash., area later Monday, where he has lived since he was released on $20,000 bail in June. He was held for nearly two months in the Blaine County Jail until Cassidy successfully petitioned the court to have bail reduced from the original amount of $500,000.
Public defender Kevin Cassidy, left, sits with defendant Robert Joe Harrison Jr. at Harrison?s jury trial last week on a felony charge of second-degree kidnapping. The jury found Harrison not guilty Monday after three hours of deliberation. Photo by Chris Pilaro
