No deposition for dying girl

Loudon County News-Herald, Sep. 2, 2002
http://www.loudon.xtn.net/
By: Jeff Farrell

A Loudon County judge on Wednesday rejected defense attorneys’ plea to preserve the words of a dying girl whose mother and minister are accused of failing to provide medical care for her illness.

Defense attorneys representing Jacqueline Crank and Ariel Ben Sherman said the girl’s testimony could be the key evidence in their cases.

Crank is the girl’s mother; Sherman has been described as the spiritual advisor to the family. Both allegedly ignored advice from medical professionals to seek specialized care for the 15-year-old girl, who has been diagnosed with a form of cancer called Ewing’s Sarcoma.

General Sessions Judge Bill Russell sided with the prosecution, saying the questioning — and cross-examination — would be too grueling for the girl, whose health is reportedly declining rapidly.

“It would be a great injustice to put this child through the rigors of this process,” Russell said. “This court will not be a party to that.”

Both defense attorneys — Greg Isaacs, representing Crank, and Don Bosch, representing Sherman — said they would appeal the ruling as quickly as possible.

After announcing his decision, Russell told them he would make the necessary court records available to them so they can proceed with that process.

That may still be too late, as Isaacs and Bosch indicated the girl’s health is failing and that she might not live until the day they had hoped to take her deposition.

Without that testimony, they said it would be difficult to mount a strong defense based on a state law which allows parents to care for their children through spiritual means, including prayer.

Both attorneys also said the testimony could become much more important, because they expect their clients to be charged with murder after the girl passes away.

Isaacs first made the accusation, telling Russell that assistant district attorney James Fox “has told me with their enormous compassion for this girl, they’re going to charge her mother with murder the day she dies,” he said.

Bosch later said Fox had not told him that, but said it would not surprise him based on the prosecution of the case so far.

During a break in the hearing, Fox told the News-Herald he had no comment about any possible murder charges, but said a previous comment was taken out of context. Later during court, he said Isaacs was not accurate and no decision about possible future charges had been reached.

However, when both attorneys inquired after the ruling about possible bond and about their client’s ability to attend the girl’s funeral, Fox told them, “I can honestly say at this point no decision has been made. If it is made, I assure you we will not pick them up before the funeral.”

According to authorities, Sherman is the head of the New Life Tabernacle, which is listed as operating at a Wheat Road residence where both he and Crank also reside.

Lenoir City Police and Loudon County Sheriff’s deputies arrested Crank in July, after what they said was a month-long search by Lenoir City Police that started after she visited a Lenoir City medical clinic.

Crank allegedly took her daughter to the clinic after the girl began complaining about pains in her shoulder. After x-raying the shoulder, clinic personnel allegedly told them her condition could be serious and urged Crank to take the girl to a Knoxville hospital immediately.

Concerned about the girl, they later called to check on her condition. After contacting other hospitals, they determined she hadn’t been taken anywhere for further care and contacted police, who started the search.

Police charged Sherman after learning chiropractors had urged him to take the girl for further treatment after he took her to a local office for care to the same shoulder in February.

Both attorneys maintain their clients decided to use prayer to treat the girl.

“Whether rightly or wrongly, my people took a left on the way to an emergency room and turned to prayer,” Isaacs said.

While the state can provide evidence that medical personnel had warned Sherman and Crank they needed to seek care for the girl — and that they failed to do so — Isaacs said the girl’s testimony could be key in proving the adults prayed for the girl.

That point was driven home earlier in the day, when a witness said she’d heard the girl say things about her treatment. Isaacs immediately seized on the statement, asking what the girl had told her — and the judge sustained a hasty objection by Fox, who noted hearsay is inadmissible.

That, Isaacs explained, is why they need to have the girl’s testimony.

“There is only one person in the world who can answer if she is receiving spiritual treatment through prayer,” he said. “That’s (the girl).” “I don’t want to go down there,” he added later. “That is the last thing I want to do, but I can’t fail to perform my duty to my client.”

Isaacs and Bosch said they would agree to any limitations set by the judge. They could submit the questions in writing, Isaacs noted, and could have medical personnel standing by to determine whether the child needed to stop. They also offered to abide by any time limits set by the judge.

The girl has said she wants to testify, he stated, adding that he wondered whether the chance to defend her mother might improve her sprits.

However, Fox noted that even if that were true, the cross-examination would be difficult for the girl.

“I would be obligated to cross-examine her and I can assure you whoever cross examines her, it will be stressful,” Fox said.

The proposed time limits and health constraints could be more of a burden on him than the defense, he added.

He summoned two witnesses to support his case: the girl’s court-appointed guardian and the head of the hospice organization that oversaw the girl’s treatment at one point.

Both testified that the girl was taking increasing dosages of various drugs for her pain and was not always lucid, and said they believed a deposition could exacerbate the girl’s condition.

However, they also admitted upon cross-examination that there were moments when the girl was able to carry on a conversation with other people present with her.

Bosch also outlined more of his defense for Sherman, saying he needed to question the girl about her relationship with his client to determine whether Sherman had any legal obligation to seek care for the child.

He also acknowledged that Sherman was only allowed in the house at specified times under a court order that was apparently issued during closed juvenile court proceedings.

Emotions were high throughout the hearing, as Isaacs accused Fox of having the girl’s legal guardian change her sworn testimony and Fox accused Isaacs of grandstanding for media covering the court proceedings.

Isaacs asked Sherry Mahar if Fox told her to change part of an affidavit; he noted she had eliminated a statement that the girl wants to testify.

However, she said she changed it on her own after reviewing the document over the weekend, noting she felt it should focus on the girl’s ability to understand and participate in the proceedings.

Fox said Isaacs had printed the quotes in question on a placard so he could show it to the media, prompting an offended outburst from Isaacs: “He’s talked about the media repeatedly today and I don’t know what he’s trying to do,” he said.

When Fox asked permission for both lawyers to approach the bench, Isaacs folded his arms and told Russell, “I’m not approaching the bench unless directed to do so by your honor.”

Isaacs at one point raised at least five objections to one question from Fox; a few minutes after that he complained that Fox had objected to almost every question he asked.

He later acknowledged the currents running through the case, admitting that because of the circumstances, “There is a lot of emotion here.”

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This post was last updated: Monday, November 30, -0001 at 12:00 AM, Central European Time (CET)