Request denied for ill girl’s deposition

Judge says dying teen not up to it
The Knoxville News-Centinel, Aug. 29, 2002
http://www.knoxnews.com/
By Randy Kenner, News-Sentinel staff writer

LOUDON – A Loudon County judge denied defense lawyers’ requests Wednesday to take a dying girl’s deposition – even though the girl apparently wants to give it to help her mother.

“It is the court’s opinion it would be a great injustice to subject this dying child to the procedure of a deposition under even the (gentlest conditions),” Sessions Judge William H. Russell ruled.

Russell also indicated he was concerned the girl’s testimony would shorten her final hours and he, “won’t be a party to hastening the child’s death.”

His decision came after an often-contentious, four-hour hearing.

Lawyers for Jacqueline P. Crank, the mother of the 15-year-old girl, and Ariel Ben Sherman, described in court as her “spiritual father,” argued the girl’s testimony is crucial to their defense on aggravated child abuse charges.

Sherman, the leader of a small religious group in Loudon, and Crank, were charged because they did not take the girl for medical treatment after it became apparent she was ill last spring.

She is expected to die within days.

“I cannot defend this mother without taking this deposition,” Crank’s attorney, Gregory P. Isaacs, told Russell during the hearing.

Isaacs’ has already filed court papers indicating that he will build his defense of Crank on a Tennessee law that bars charging parents who use prayer – in lieu of medical treatment – to treat a seriously ill child.

Without the girl’s testimony both he and Donald A. Bosch, who represents Sherman, told the court their efforts to mount a defense would be crippled.

Both lawyers said they believe Crank and Sherman will be charged with murder when the girl dies.

“There is one person in the world who can answer if she was receiving medical treatment through prayer,” Isaacs argued. “To try and silence the daughter is an attempt to circumvent the statute.”

Bosch also told the court that he and Isaacs would submit to whatever conditions Russell wanted in order to make the deposition as easy as possible.

“We can construct a mechanism by which we can protect (the girl),” Bosch said before telling Russell the bottom line is, “If we don’t take this deposition, and don’t take it by Friday we are likely to lose this testimony forever.”

But Assistant District Attorney Gary Fox argued the girl’s testimony is not relevant to this case.

“It’s not relevant what the child knew or didn’t know about the medical care,” he said. “That’s not a decision that the child makes. That’s a decision that the parents make.”

“The adults are obligated to provide medical care to the child,” he argued.

Fox also said the girl is on large doses of pain medication, tires easily and cannot offer lucid, competent testimony.

“She is not mentally capable of understanding what she is doing, to testify,” he said.

The case arose from a May 6 incident when Crank, a member of Sherman’s group, took the girl to a clinic in Lenoir City. Employees there advised her to take the teen to the University of Tennessee Medical Center.

But Crank never showed up. Lenoir City Police Department detectives, searching for the girl, didn’t find her until late June.

Fox elicited testimony from the girl’s court-appointed guardian, Knoxville lawyer Sherry L. Mahar, in support of his position.

Mahar told Fox the girl’s condition is rapidly deteriorating and her ability to communicate is now, “very, very limited.”

Mahar agreed the girl wants to help her mother but said she was no longer capable of giving a deposition.

But Bosch elicited testimony from Mahar that the girl is responsive to her, even if it’s only for a limited time.

D’nice Carden, a nurse at East Tennessee Children’s Hospital also testified she didn’t believe the girl should undergo a deposition.

“I am not trying to say that (the child) is in a constant state of confusion,” Carden testified. “She might want to do it. But it would be stressful.”

At one point Isaacs told Carden that as a person, he respected her opinion.

But, he said, as Crank’s attorney, he didn’t care what her opinion was and added, “Please, don’t take this personally.”

A few moments later Isaacs elicited Carden’s testimony that the girl talks with her mother and nurses and is comfortable doing what was referred to as “chitchat.” Isaacs asked why the deposition couldn’t be done in that style.

Carden replied, “I have a hard time believing that you have ever chitchatted with anyone. No disrespect intended.”

Carden testified the girl has told her and others about what happened and Carden asked why she couldn’t testify about those matters – sparing the girl.

Isaacs quietly asked her to go ahead and tell the court what the girl said.

But Fox objected and the judge sustained the objection because that testimony would be hearsay.

“So that’s why we have to take a deposition,” Isaacs said. “If we didn’t have to, I wouldn’t be here and you wouldn’t be here.”

Bosch and Isaacs said they will file an “immediate” appeal.

Randy Kenner may be reached at 865-342-6305 or kenner@knews.com

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