LIHUE — The weeklong trial against a former Kauai resident accused of sexually assaulting a step-daughter in the mid-1990s may wind up in a mistrial.
A prosecutor’s question to the last witness of the day Friday prompted the judge to stop proceedings in 5th Circuit Court and say he will decide the course of the case against Steven Westerman, 37, who was indicted on six counts of first-degree sexual assault on a 6-year-old stepdaughter between 1995 and 1997.
The prosecutor asked whether the expert witness was biased because his own son faced sexual assault charges.
Chief Judge Randal Valenciano immediately sent the jury out of the room and questioned the prosecutor regarding the line of questioning.
“I am trying to think of how I can ‘un-ring the bell’, and I am not sure if I am able to do that,” Valenciano said to the attorneys before telling them he would make his decision on the fate of the case Monday.
Before the judge halted the case, defense attorney Craig De Costa called expert witness Marvin Acklin, a forensic psychologist, to the stand. Acklin was asked his opinion on studies presented by Diane Gerard, Ph.D, as evidence in support of the prosecution’s reasoning why the victim delayed reporting the alleged crimes until she was 16 years old.
Gerard had testified earlier in the week that studies show around two-thirds of child sex-assault victims do not tell anyone what happened until they are older. But Acklin questioned Gerard’s selection of studies and the summaries on delay of disclosure compared to other research on the topic.
Acklin said it was possible that the number of followup interviews presented possible leading-questions and suggestibility issues. That was in contrast to Gerard’s claim that studies show the memories of children over age 6 are not easily influenced when repeatedly told things that are not true or different than what they witnessed.
The interviews that occur closest to the offense are likely to be the most accurate, he said, and after that point everything, including conversations with family, can influence memories.
In her rebuttal questions County Deputy Prosecuting Attorney Lisa Arin asked Acklin if his testimony could be biased because his “own son is charged with sexually assaulting a child.”
The question referred to Kaleb Acklin, of Honolulu, who was indicted in 2013 for allegedly sexually assaulting a 4-year-old girl in 2011. His jury trial is set for Sept. 29 in 1st Circuit Court.
Valenciano then sent the jury out.
Arin told the judge that Acklin’s testimony moved to discredit the state’s expert witness and that it was appropriate to point out the possible bias of someone so closely associated with an individual charged with a similar offense to that of the defendant in this case.
Valenciano said the rebuttal questioning should be limited to the testimony already presented in court. It was not a time to present new evidence but to focus on the questions and statements already made in the previous testimony to the defense attorney.
Had the court been prepared to anticipate the question then the testimony could have been stopped until a bench conference would decide whether or not to allow it. There was no expectation of the question by the court or to the defense counsel, he said.
“It was so out of the ordinary that the court could not anticipate it,” Valenciano said.
De Costa said that if the prosecution wanted to challenge Acklin’s testimony as biased then it should have filed a motion for a hearing prior to his appearance in court. The defense was not aware that the state planned to allege possible bias in the testimony, he said.
De Costa moved for a mistrial. He said the inflammatory question prevented his client from having a fair trial. He has argued all along that the case lacks evidence, DNA and had no fair and full investigation.
Valenciano ordered the attorneys to file their arguments on the motion to dismiss prior to court on Monday.
The matter will be decided prior to the jury returning to the courtroom that morning.
The day began with Westerman taking the stand in his own defense. He testified to never having touched the stepdaughter in an inappropriate matter. He denied all the sex assault allegations and said simply that he would not begin to assume what was “going on in her mind” to accuse him of such a crime.
During testimony, Westerman explained that he is the son of Kauai Fire Chief Robert Westerman, and that he moved to Kauai as a child. He and his ex-wife met while working at a Kauai restaurant when he was just 19 and she was still married. The two moved in together and had a baby in addition to the 6 year-old from a previous marriage.
Westerman said that he left the relationship upon discovering that his wife had another boyfriend, he said. He joined the U.S. Army in 1997 and had intended to support the family but left the island alone.
Westerman served for nearly three years and lived as a civilian in Georgia and Washington state. He visited the island in late 1997 and did not return until charged in this case in 2012.