The Minnesota Court of Appeals reversed a district court’s decision to convict former Albert Lea High School band instructor Russell Allan Konrad of criminal sexual conduct with a junior-year student.

A jury found Konrad guilty of fourth-degree criminal sexual conduct in November 2001, and County District Court Judge James Broberg ordered a stayed-prison-time sentence.

The upper court opinion issued Tuesday states that the district court failed to comply with proper legal procedure in granting a request to reduce the size of the jury.

Judge James Broberg granted a request by Konrad’s attorney, Samuel A. McCloud, to have a six-person jury instead of a 12-person jury just before the trial started. The discussion was conducted in the judge’s chamber, and Konrad was not present.

The three-judge appeals court panel found the constitutional right to have a 12-person jury in a felony case can be waived only when the defendant agrees personally either in writing or orally in open court under the rules of criminal procedure.

The Minnesota Attorney General’s Office argued that Konrad did not object and that his attorney invited the court’s error.

But the panel found the 12-person jury is an essential constitutional right and the waiver has to follow the rules.

The defense also questioned the use of Konrad’s other bad acts as evidence in the trial. Prosecution witnesses testified in front of the jury about Konrad’s alleged misbehavior not directly related to the charge. McCloud had tired to strike the testimony, but the court allowed it, saying the testimoniy was relevant to the case and not prejudicial.

The appeals court did not make a ruling on this aspect.

Freeborn County Attorney Craig Nelson said he would consult with the plaintiff and her family to see if they are still willing to pursue the charge.