Jailed ex-juror Dennis DeMartin should be released because the judge violated the law with a harsh sentence designed to “send a message to the community,” a defense attorney argued this week.

Last month, Palm Beach County Chief Circuit Judge Jeffrey Colbath sentenced the disgraced former John Goodman juror to five months and 29 days in the county jail, after finding DeMartin guilty of criminal contempt for his actions before convicting the Wellington polo executive of DUI manslaughter in 2012.

Colbath then made a point of asking the public to be mindful not to take jury duty lightly: “I want all the potential jurors, all citizens, to know that when they come here and we ask them questions, not only do we expect the truth, but we’re entitled to it. And we got far less than that from Mr. DeMartin.”

The judge gave the maximum sentence to DeMartin, 70, of Delray Beach, indicating he could serve the final two months on house arrest. Colbath blamed DeMartin for having to grant Goodman a retrial slated for next month, and creating more “emotional upheaval” for the family of victim Scott Wilson, 23.

On Feb. 11, Colbath rejected a defense motion to reconsider granting bail or releasing DeMartin on his own recognizance while DeMartin appeals. DeMartin’s attorney had cited the man’s history of heart trouble, financial hardships, and other “non-frivolous and fairly debatable” issues raises in his appeal.

But on Tuesday, DeMartin’s appellate attorney presented a new argument that challenges Colbath’s right to punish DeMartin for the reason of sending a broader message.

While listing previous court decisions from Florida and around the nation as reference, Assistant Public Defender Paul Petillo wrote, “it is improper to single out a defendant for especially harsh treatment — to give the defendant more punishment than he or she deserves — in order to serve the utilitarian purpose of ‘sending a message to the community.”

“Because the ‘bulk’ of DeMartin’s sentence was intended to send a message, the sentence should be set aside and he should be resentenced,” Petillo concluded.

DeMartin has been in custody since Jan. 27, when Colbath found him guilty of two criminal contempt charges. The judge said DeMartin “willfully” lied during Goodman’s jury selection when he was asked questions but didn’t disclose an ex-wife’s DUI arrest, and later violated court rules when he conducted a vodka drinking test at home before deliberating the Goodman verdict with the five other jurors.

In a separate pleading filed last week, Petillo argues that DeMartin should be entitled to bond because there’s a good argument in the appeal for overturning the contempt charge concerning the drinking experiment.

Specifically, the defense contends that while the court forbade jurors from conducting research, it didn’t expressly ban such an alcohol drinking test.

“Because it is fairly debatable whether this Court’s instructions precisely and unambiguously put DeMartin on notice that drinking an amount consistent with the amount indicated by Goodman was forbidden, this Court should release” DeMartin on a bond he can afford or on his own recognizance, Petillo wrote.

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