by Laura Italiano
Accused cybersex fiend Oliver Jovanovic's torture case will be retried by the same judge who was slammed by an appeals court for making "egregious" errors during the first trial.
Jovanovic's lawyers yesterday vowed to ask Manhattan Supreme Court Justice William Wetzel to excuse himself from the new trial, which has yet to be scheduled.
Some legal experts questioned the decision to keep Wetzel at the helm of the sensitive, sensational case - a decision that came from Manhattan's top-ranking criminal judge, Justice Micki Scherer.
"I used to like having a fresh judge every time a case is retried," said Burton Roberts, who was the top-ranking criminal judge in The Bronx from 1984 to 1999.
"There's no rule against it," Roberts said of keeping Wetzel on the case. "But I usually wanted to start off without the possibility, or the appearance, of an ingrained prejudice."
Veteran defense lawyer Ron Kuby was more blunt: "It doesn't pass the smell test," he said.
Defense lawyer Paul Callan, who is taking over Jovanovic's case for the new trial - accused Wetzel of being hostile to the defense and unfit to retry the case.
Wetzel repeatedly tussled with Jovanovic's legal team during the first trial, in which a jury found him guilty of kidnapping, sexually abusing, and assaulting a 20-year-old Barnard College student he'd met online in 1996.
During sentencing, Wetzel condemned Jovanovic for his "sense of superiority," blasted his lawyers and supporters for terrorizing their opponents, and slapped the brainy grad student with a whopping 15 years to life in prison.
Jovanovic appealed and won. In overturning the conviction, state appellate judges ruled Wetzel erred in barring jurors from seeing racy e-mails the accuser sent to him before their fateful "date."
In the e-mails, "She purposefully conveyed to Jovanovic an interest in engaging in consensual sadomasochism with him," the judges ruled.
Not letting jurors see those e-mails "was particularly egregious," they ruled, since the error allowed prosecutors to depict Jovanovic - without contradiction - "as a monstrous sadist, scanning the Internet for unwary victims."
"It is common practice," David Bookstaver, spokesman for the New York courts system, said of the assignment of the case to the original trial judge.
He noted that the appeals judges did not specify in their decision, as they could have, that a new judge be selected for Jovanovic's retrial.
Asked if Scherer's decision was influenced by the Manhattan district attorney's office - which has repeatedly pressed for Wetzel to stay on the case - Bookstaver said: "There was absolutely no outside influence on Judge Scherer when she made her decision."
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