COLLIER COUNTY — Lawyers for former Gulf Coast High School band director Robert Hamberg will be in an appeals court today, arguing for a new trial on charges of having sex with a student
Hamberg, 55, is serving a 30-year prison sentence after he was convicted in April 2011 on eight counts of lewd and lascivious battery for carrying on a sexual relationship with a then-15-year-old freshman.
Court records show Hamberg's lawyers have listed seven points they're arguing before the 2nd District Court of Appeals at 11 a.m. in Lakeland. Here's a breakdown of three key questions, along with arguments derived from the briefs from both sides:
Question: Should prosecutors have been allowed to introduce testimony at trial about Hamberg's relationship with his wife, whom he met while he was a high school band teacher in Georgia and she was a student?
Argument: Before the trial, Collier Circuit Judge Fred Hardt ruled prosecutors couldn't ask Hamberg about meeting his wife because no evidence had been presented of an improper sexual relationship while in Georgia.
But during the trial, Hardt ruled Hamberg "opened the door" to such questions because Hamberg testified, "I was naive, and although I'd heard about teachers putting themselves in dangerous positions, I never thought it would happen to me…"
The phrase "opening the door" refers to allowing previously inadmissible testimony when a witness misleads a jury. Prosecutors said Hamberg had previously spoken about leaving Georgia because of perceptions about his relationship with his wife, making his comments about being naive misleading.
In their appeal, Hamberg's lawyers argue prosecutors didn't show the required "legitimate need" to correct Hamberg's testimony, saying his statement "had little — if any — impact on the State's case."
Question: Should Hamberg's ex-wife have been allowed to testify about whether Hamberg could physically French kiss and perform oral sex?
Argument: When Hamberg testified he couldn't perform either act due to a "tied tongue," prosecutors called Hamberg's ex-wife, Jacqueline Rush, as a rebuttal witness, even though she wasn't listed on a witness list.
On appeal, Hamberg's lawyers say Rush's absence from a witness list meant his defense couldn't speak with Rush or research her motives before the trial. They also argue not enough time was given to find a medical expert to refute Rush's testimony.
Prosecutors say Rush was made available to Hamberg's lawyers before the trial, and his defense had nearly two years to prepare for trial and find a medical witness.
Question: Should a jury have been allowed to hear testimony about the victim's sexual history?
Argument: One theory Hamberg never presented at trial was that the victim lied to investigators to cover up a sexual encounter she had with a fellow student.
Before the trial, Hardt said the victim's sexual history was irrelevant to the case, making it inadmissible. Prosecutors said the victim is protected under the state's "rape shield" law, which outlines when a victim's sexual history can be detailed at trial.
Hamberg's lawyers argue he should receive a new trial because in this case, the "rape shield" law can be disregarded if it interferes or prevents a defendant from presenting a "full and fair defense."