Judges: ‘Coach Bart’ can’t use old sex talk testimony in new trial – Asbury Park Press

A panel of appellate judges listen to arguments in the appeal of the conviction of former St. Rose High School baseball coach Bart McInerney. Doug Hood

Former St. Rose baseball coach Bartholomew McInerney testifies during his trial in the courtroom of Hon. Anthony J. Mellaci Jr. at the Monmouth County Courthouse in Freehold. Photo by BRADLEY J. PENNER/staff photographer. Freehold -- 01/19/10 -- ## MCINERNEY ##(Photo: BRADLEY J. PENNER/Asbury Park Press)Buy Photo

FREEHOLD -Bartholomew McInerney wants a jury to hear that he didnt derive any sexual thrills from the sex talks he had with the teenage boys he coached in baseball for St. Rose High School in Belmar.

But appellate judges have ruled that if Coach Bart wants jurors to hear that, hell have to tell them himself.

Judges Carmen H. Alvarez, Thomas V. Manahan and Allison E. Accurso of the Appellate Division of Superior Court ruled last week that McInerney cannot introduce his own testimony from his 2010 child endangerment trial at his upcoming retrial just because he now plans to invoke his Fifth Amendment right to remain silent.

McInerney, former baseball coach for St. Rose High School, is being retried on 10 counts of child endangerment. The allegations against McInerney, known as Coach Bart, include that he told his players on the baseball team to pleasure themselves and offered them money to send him text messages with details of their sex acts.

More: Lawyer: Coach Bart got "no sexual thrill''

McInerney testified at the 2010 trial that he had the sex talks with his players in an attempt to keep them from getting their girlfriends pregnant, his attorney, Edward C. Bertucio, said at a prior hearing.

Bertucio told the appellate judges in February he wanted to introduce the prior testimony at McInerneys new trial to show there was no sexual purpose or no sexual thrill to what he was doing.

Since the appellate panel shot that down, Bertucio, of the Eatontown law firm Hobbie, Corrigan and Bertucio, said he plans to ask the state Supreme Court to hear an appeal of the ruling.

The allegations against McInerney, 50, of Spring Lake, emerged in 2007 after he took some of the St. Rose baseball players to Alaska and Hawaii for tournaments. The following year, one of his former players, Andrew M. Clark, died when he stepped in front of an oncoming train. Clarks family later received a $900,000 settlement in a wrongful death lawsuit against McInerney, St. Rose and the Diocese of Trenton.

More: Coach, school settle suit over player's suicide

At McInerneys trial in Superior Court in Monmouth County in 2010, he was convicted of 10 counts of child endangerment and sentenced to 18 years in prison. An appellate panel in 2012 overturned his conviction and sentence, saying the trial judge gave confusing instructions to the jury.

McInerney was set to be retried on the charges in Middlesex County last year when the Monmouth County Prosecutors Office filed an appeal with the Appellate Division of Superior Court of a pretrial ruling by Judge Pedro Jimenez. Jimenez ruled that McInerney would be allowed to introduce his 2010 trial testimony.

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At the February appellate hearing, Monica do Outeiro, an assistant Monmouth County prosecutor, argued that prior testimony should be excluded from the new trial because it is hearsay.

Bertucio argued the prior testimony should be allowed because it falls under an exception that allows hearsay evidence if a witness isnt available to testify. He argued that his client wont be available to testify at the retrial because he plans to invoke his Fifth Amendment right to remain silent.

Watch the oral arguments at the appellate hearing in the video above.

The appellate panel, in a published opinion that other judges can reference in their own decisions, ruled otherwise and said McInerneys prior testimony cant be used at the new trial if he is the person who is making himself unavailable to testify.

The appellate judges, in an opinion written by Alvarez, said a defendants Fifth Amendment right does not take precedence over the basic rule of our adversary system that a defendant who seeks to testify and offer exculpatory statements must face cross-examination.

Bertucio said he disagrees.

We believe Judge Jimenez was correct under the law,"the defense attorney said. This was an evidentiary ruling, which gives Judge Jimenez broad discretion, and he was well within his discretion. We will file an appeal very shortly."

Kathleen Hopkins: 732-643-4202; Khopkins@app.com

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Judges: 'Coach Bart' can't use old sex talk testimony in new trial - Asbury Park Press