LIHUE — A judge declared a mistrial Monday in 5th Circuit Court in the case of a former Kauai man accused of sexually assaulting a stepdaughter in the mid-1990s. Chief Judge Randal Valenciano said the lack of direct witnesses and other evidence
LIHUE — A judge declared a mistrial Monday in 5th Circuit Court in the case of a former Kauai man accused of sexually assaulting a stepdaughter in the mid-1990s.
Chief Judge Randal Valenciano said the lack of direct witnesses and other evidence to alone convoke a jury to convict or acquit the defendant made the trial hinge on the issue of credibility. The deputy prosecutor’s statements to discredit the testimony of an expert witness with a personal attack may have influenced the jury to the point that it was not possible for a corrective remedy.
“The nature of the conduct infringes on the defendant’s right to a fair trial,” Valenciano said.
The mistrial motion came Friday after cross-examination of Marvin Acklin, a forensic psychologist called upon to testify to his opinion on the state’s child sex assault psychology expert Diane Gerard. She had presented studies and conclusions as evidence in support of why the victim delayed reporting the alleged crimes until she was 16 years old.
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 is awaiting jury trial this September for an alleged sexual assault of a minor in 2011.
Monday was day five of the trial of Steven Westerman, 37, who was indicted on six counts of first-degree sexual assault on a 6-year-old stepdaughter between 1995 and 1997. Both Westerman and the victim, now 24, testified during the trial.
Valenciano said he didn’t believe that Acklin’s testimony in and of itself may have influenced the jury one way or the other. He granted the motion for mistrial because the case hinged on a jury’s decision based on the credibility of testimony from the victim and the defendant.
Since Acklin testified to possible bias in Gerard’s reports, Arin argued that the prosecution is not required to give notice to questioning where his own credibility is questionable regarding the selection of research and conclusion on child sex assault cases.
The defense should have been aware that Acklin was in a position of possible conflict, Arin said. Acklin has extensive court experience and he should have disclosed the possible conflict to the defense prior to offering testimony.
Defense attorney Craig De Costa said there were opportunities to provide notice to the court and the defense of concerns with possible bias from the expert witness.
The prosecutor’s statements prevented the court from exercising “the balancing act” of what is admissible or not during testimony in front of the jury.
De Costa called the statements without notice a “trial by ambush.”
“We respectfully believe the question was legitimate and we are disappointed with the court’s decision,” said County Prosecuting Attorney Justin Kollar. “We look forward to proceeding with the case and doing all we can to seek justice.”
Valenciano set a new trial date for Aug. 18.
A juror was ill and not present.
One of the two alternate jurors took the spot prior to the court’s decision to call a mistrial.
Westerman is the son of Kauai Fire Chief Robert Westerman. He married his now ex-wife at age 19 and the two have a daughter in addition to the daughter from a former marriage who is the alleged victim. He returned to Kauai after being charged in this case in 2012.
