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Jeffrey Kimmel was to have been sentenced last Friday. But Superior Court Judge Patrick J. Roma temporarily postponed the sentencing hearing while he decided on the former officer’s request.
After issuing his ruling late this morning, the judge set a July 12 sentencing date.
Roma rejected defense attorney Craig Swenson’s argument that Kimmel could not be guilty of the crime of impairing the morals of a child through sexual contact after jurors acquitted him of sexual assault.
“A jury can find a defendant guilty of endangering without finding him guilty of criminal sexual contact, even if the alleged sexual conduct is the same as the alleged sexual contact,” the judge wrote.
What’s more, the judge said: “Proofs may be stronger for one charge than another. The standards of law are different for endangerment than for sexual assault.
“Under our court system, the jury acts as the ultimate finder of fact,” Roma said. “The inconsistency found within this verdict points to a high level of thought and analysis from the jury, rather than the jury error” alleged by Kimmel’s lawyer.
The result was “an acceptable, albeit inconsistent verdict,” the judge found.
“Even if the verdict is inconsistent, it is still acceptable” because it is supported by the great weight of the evidence, he wrote.
Roma noted that the state Supreme Court “cautioned against setting aside inconsistent or illogical verdicts and from speculation . . . when the reason for their inconsistency cannot be determined.”
He also rejected the argument that the young victim’s testimony was inconsistent.
“Based on the sensitive fact pattern and special needs of the young victim, the court must consider that a young child can only express herself as well as her own maturity and understanding can allow,” Roma said.
“The victim was able to maintain throughout her testimony the defendant’s sexual contact,” he said, adding that “the jury was able to establish the sexual conduct outlined in the endangering charge.
“She testified Kimmel touched her vagina on several occasions, and the mother and pediatrician … both supported her statements.”
“His own testimony contradicted his original statements made to police,” Roma wrote. “Those weaken the credibility of his testimony.”
Swenson argued earlier this week that jurors reached an “inconsistent verdict” in convicting Kimmel of impairing the morals of a 7-year-old girl after finding him not guilty of molesting her.
“The jury tells us, ‘We didn’t think this happened’,” Swenson told Roma, adding that the testimony of the girl, who’s now 9, was inconsistent.
Roma noted that the state Supreme Court has ruled — on an appeal of one of his cases — that “it’s all right to have inconsistent verdicts.”
Assistant Bergen County Prosecutor Demetra Maurice warned against “trying to insert ourselves into the deliberation process.”
“It’s a slippery and dangerous slope, and that’s why our Supreme Court doesn’t want us to do it,” Maurice said.
The prosecutor said sex crimes are emotional, and the jurors do their best to come to a well-thought out verdict.
“Maybe they decided to give him a break, cut him some slack,” she said. “We don’t know their reasoning, and that’s why it’s dangerous to second-guess it.”
Maurice also disagreed about the girls’ testimony, saying that she never wavered.
STORY / PHOTOS: Mary K. Miraglia, CLIFFVIEW PILOT Courthouse Reporter
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