After sex abuse mistrial, defendant seeks dismissal Defense warns of double jeopardy

June 23, 1993|By Darren M. Allen | Darren M. Allen,Staff Writer

A Westminster man, whose first trial on charges that he sexually abused his 17-year-old stepson ended in mistrial, asked a judge yesterday to dismiss the charges.

In a morning-long hearing, Assistant Public Defender Samuel Truette argued that Circuit Judge Raymond E. Beck Sr. should dismiss the case against his client because "misconduct" by the prosecutor at trial makes a new trial unconstitutional.

"Something is aberrant in this case," Mr. Truette said, trying to convince the judge that taking his client to trial a second time on the same charges amounts to double jeopardy. "Something has gone haywire."

Christy McFaul, the assistant state's attorney who prosecuted the 29-year-old man in February, denied Mr. Truette's assertions yesterday that she acted improperly in the case.

"You will find that a smoke screen has been thrown up for a year in this case," Ms. McFaul said. "Mr. Truette has put the state in the position of constantly defending itself" instead of prosecuting and proving a case of child abuse.

The defendant, a 29-year-old carpenter, allegedly abused his stepson during a 19-month period ending in February 1992.

During the first trial on Feb. 9, the stepson detailed sexual encounters that allegedly took place at the family's house, in the man's workshop and on a family vacation.

Trying to give the jury hearing the case a possible reason for the stepson's accusations, Mr. Truette asked the boy questions to establish that he was angry with his mother and stepfather for grounding him and forcing him to break up with a girlfriend who lives in Delaware.

To counter Mr. Truette's argument, Ms. McFaul asked the boy why he decided to tell his mother about his accusations when he did.

The boy replied that it was because his mother didn't believe similar allegations made by his sister. His sister later recanted and said she was told by her brother to make the allegations.

As he was answering questions from the prosecutor, the boy said he made the allegations to his mother when she returned home from serving a night in jail after a drug arrest.

Mr. Truette moved for a mistrial after the boy testified about the drug arrest and his sister's recantation. Circuit Judge Luke K. Burns Jr. granted the request.

In yesterday's hearing, Mr. Truette suggested that Ms. McFaul purposely "sabotaged" the case because she knew it "was a loser."

"Ms. McFaul just doesn't get it," the attorney said. "In her arguments, she is trying to fit a square peg into a round hole."

Mr. Truette said Ms. McFaul was irresponsible, deliberately bringing up the teen-ager's mother's jail stay and the sister's allegations.

And, Mr. Truette said, presenting testimony about the mother and sister was intended to throw the case. That, the defense lawyer said, should result in the dropping of the present case.

Ms. McFaul denied purposely throwing the case, and said Mr. Truette gives her "too much credit" when he says she "cleverly" devised a method to bring about a mistrial.

Judge Beck said he will issue his decision in writing within two weeks.

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