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Sunday, February 17,2013

Defense in child sex case opposes closed-circuit TV testimony

By Jim Phillips

The attorney for a 76-year-old Glouster man who's accused of sexually molesting five children has asked a judge to let the defense have its own psychologist interview the alleged victims, to see if they need to be physically isolated from the man when they testify against him.

The Athens County Prosecutor's office has asked Athens County Common Pleas Judge Michael Ward to let the children give their testimony by closed-circuit television, so they won't have to be in the same room as defendant Thomas E. Shifflet. The state claims the children will be psychologically traumatized if they have to testify in Shifflet's presence, and in a hearing last Monday, a psychologist testifying for the prosecution supported this claim.

Defense attorney John Lavelle, however, said in court Friday that statements made on the witness stand by Licking County psychologist Mackenzie Peterson make him doubt whether she's a reliable judge of how at risk the children are for psychological trauma.

Lavelle cited Peterson's comment in regard to a claim by one girl, that she broke down in tears when she testified at a court hearing with Shifflet present. The defense attorney has said that the transcript of the hearing does not indicate that the girl actually started crying on the stand. When he questioned Peterson about this apparent inconsistency, however, she told him that she didn't consider the girl's statement a lie.

"This is how she remembers it," Peterson testified. "I'm accepting the way she recalls this as her reality."

In Friday's hearing, Lavelle noted that in asking for closed-circuit TV testimony, the prosecutor's office is relying on a state law that allows for such an arrangement if a child witness is at risk of being psychologically traumatized by having to testify with the alleged sexual abuser in the same room. Therefore, he told Ward, it's only fair to let the defense have its own psychology expert weigh in on this question, to possibly counter Peterson's testimony.

Based on Peterson's comments at last Monday's hearing, Lavelle said, he believes that she has not critically examined statements made to her by the children to see if they're plausible.

"Regardless of what the child tells her, she takes it at face value," the attorney alleged, adding that he was "somewhat taken aback" when Peterson made her remarks on the witness stand.

Lavelle said he has spoken to another psychologist, who told him that Peterson's approach to assessing the child's statements is "not the appropriate standard" for a psychologist to use.

The attorney wants permission from Ward to have this other psychologist, Jeffrey L. Smalldon, interview the children to see if he agrees with Peterson that they would be traumatized by having to testify with Shifflet in the room.

Lavelle argued that because the prosecution is basing its request for closed-circuit testimony on a narrow exception in state law, the defense should get an opportunity to challenge whether that exception actually applies.

"This is a situation where the state is seeking the narrow exception, and it's trying to control all the evidence on that narrow exception," he said. "The state's trying to get into the pigeonhole of the statute… but they want to control all the chips if the poker game, if you will."

He added that he doesn't have any idea whether Smalldon will find that the children could testify in Shifflet's presence without being traumatized.

"Who knows?" he said. "He may agree with the findings of the state's psychologist. I simply don't know."

Athens County assistant prosecutor Robert Driscoll told the judge that regardless of the transcript of the hearing at which the girl testified – which in any case would not indicate whether she started crying or not – he, Driscoll, knows by direct observation that the girl did start crying after she testified.

"The child was crying when she came off (the witness stand)," he told Ward. "I saw her afterward, and she was crying."

Lavelle acknowledged that under normal circumstances, the defense would have no right to have its own expert assess the psychological state of an alleged crime victim. Given the state's request for closed-circuit testimony, however, he said, such an assessment is appropriate in this case. He added that it won't delay Shifflet's trial, currently scheduled to start March 27, and asked, "What's the harm in it?"

Driscoll responded: "As far as 'what's the harm'? Five children going through this yet again."

Lavelle told Ward that he has had experience with closed-circuit testimony in the past, and doesn't think much of its value.

"Many years ago, I had a trial where we used this closed-circuit television," he said. "I just remember it was a very awkward and cumbersome proceeding… I just feel it's not an effective way to present evidence to a jury when you're searching for the truth."

Ward still needs to rule on the motion for remote testimony, as well as other pending motions such as a defense motion to split Shifflet's five-count indictment into two indictments to be tried separately.

Shifflet is alleged to have molested the children, now aged 5 to 14 years old, at an Athens County daycare facility in 2010 and 2011.


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