Sex charges were dismissed Monday against Kettrell Berry, a former administrator at a Kearny Mesa school for troubled children who allegedly carried on a sexual relationship with a female student.
But a prosecutor said she plans to refile the case as soon as results of newly tested DNA evidence are in.
Berry, 51, was charged two years ago with 14 felony counts, including rape with a foreign object and unlawful intercourse with a minor.
Deputy District Attorney Renee Palermo told Judge Joan Weber that based on defense discovery, the prosecution had some DNA evidence tested and wanted to present the results — expected later this week — at Berry’s trial, but the judge ruled the evidence inadmissible.
Since Berry insisted on going forward with trial immediately — which is his right — Palermo said she decided to dismiss the case and refile charges when the new DNA results are available.
The accuser known as Elizabeth C, then 16, testified in August 2012 that she established a bond with Berry soon after arriving at the San Diego Center for Children in December 2011.
Elizabeth said Berry would counsel her, meet her after school and listen to her problems. The girl said she and Berry began hugging at the end of meetings and the relationship turned sexual.
Berry, an assistant principal, was fired after nine years at the school.
Defense attorney James Pokorny said at the earlier hearing that Elizabeth “despises” his client and would do anything to punish him for what happened.
Elizabeth C has a history of drug abuse, lying and stealing, according to school records Berry and his attorney hoped to introduce as evidence.
In February, Judge Weber ordered a jury pool of 85 for a trial expected to last 10 days.
Pokorny, a distance runner in his mid-60s, is defending Berry, a masters age-group national champion sprinter.
Pokorny is expert in child-molestation defense and was the original lawyer for former Army-Navy Academy administrator Jeffrey Scott Barton, facing his own molest charges.
At the February hearing in San Diego Superior Court, Weber said: “I didn’t know one case could have so many issues.”
Deputy District Attorney Palermo later acknowledged: “It’s a messy situation.”
Weber then proceeded to sort through a slew of motions from both sides — determining what the jury would hear at trial. Weber excluded some items, allowed others and deferred decisions, pending June hearings where Pokorny would call witnesses ahead of trial.
Among them was expected to be Elizabeth herself, who turnsed 18 in March. Berry and his lawyer say they have evidence that Elizabeth told a school therapist she lied about accusing a 17-year-old boy of under-age sex. The boy was never charged, but Elizabeth was to be put on the stand to say whether she had lied on this and other issues.
“If this was false reporting; this goes to the heart of the whole case,” Pokorny said.
Relevant to her credibility is a host of other incidents, including one that greatly interested the judge — an allegation that Elizabeth stole from her aunt.
In court documents, Pokorny said school records would show that Elizabeth has been “reported or disciplined for” manipulating school staff, threatening bodily harm to peers and faculty, physically assaulting another student, sexually harassing others and other acts.
Pokorny told the court Friday that Elizabeth, then 14 or 15, would “lie, cheat, steal” and resort to anything to get out of the school, suggesting that accusing Berry was part of a pattern.
“Bottom line is she invented this stuff,” Pokorny said. “She’s sexually experienced. She knew what to say, how to describe [sexual acts].”
But Weber was hesitant to allow evidence of “manipulation,” saying: “I don’t see anything described in school records that would be relevant. … It would tend to confuse the jury.” She added that she didn’t want to see 15 teachers put on the stand to describe actions taking place 15 months before the arrest.
And Weber scoffed at allowing evidence that Elizabeth allowed another student to copy her homework, saying: “It does seem so minor to me. It’s a school incident … so trivial. … We’re kind of on a fishing expedition here.”
Also at issue was whether a tape of a phone chat should be allowed — one in which Berry is heard telling Elizabeth “It didn’t happen. This didn’t happen.”
The prosecutor wants the jury to hear the tape. The defense wants only a transcript made available, saying the deputy DA could argue that Berry didn’t protest vigorously enough.
Pokorny said the call was only one of a series between Berry and the teen, and the tone of voice shouldn’t be spun against his client.
Berry’s trial has been postponed at least four times. First it was April 23, 2013, then Nov. 12, 2013, then Jan. 3 and later March 3, 2014, before the June date.
Berry, facing 14 counts that could put him in prison for 11 years, has been free on $150,000 bail.
He takes care of his young son and daughter. Son Amaree is a middle-distance star in the 9-10 group. He posts videos of hill training on Facebook.
— City News Service contributed to this report.