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August 26, 2006

Austine counselor's conviction reversed

From: Brattleboro Reformer - Aug 26, 2006

(Please see this also: No. 04-290. - STATE v. REHKOP - VT Supreme Court )

By The Associated Press

Saturday, August 26
MONTPELIER -- The Vermont Supreme Court on Friday overturned the conviction of a counselor at Brattleboro's Austine School for the deaf for sexual assault on a minor, saying evidence about the alleged victim's history of lying was not aired at trial.

The court reversed the 2004 conviction of John Rehkop, 35, on three counts of sexual assault on a minor. In a trial that needed four sign-language interpreters because the accuser, defendant and several witnesses were deaf, Rehkop was accused of forcing the 13-year-old girl to perform sex acts.

The high court found that Judge Karen Carroll, who heard the case in Vermont District Court, erred when she declined to review fully the girl's school records and counselors' reports indicating the girl had a history of lying.

"As in many cases of this nature, the trial was a credibility contest between complainant and defendant," the court's decision said. "The evidence at trial included neither physical evidence nor corroborating witnesses."

The allegations against Rehkop first arose two years after the girl left Austine for another school in Massachusetts, in a game of "truth or dare" with her basketball teammates.

"In response to the question of whether anyone had had oral sex with a man, N.K. answered yes and said that it was a staff member at Austine," the court decision said. "A teammate relayed the story to a school counselor."

During pretrial discovery, the defense found school records saying the girl was "less than truthful -- could use counseling to help her see the value of being truthful." A school counselor wrote that she had an "ability to look you in the eye and tell a lie."

The judge said she would allow introduction of evidence only relating to the specific allegations concerning Rehkop, and on whether she had recanted allegations of sexual abuse in the past.

"The court further limited the scope of discovery by forbidding any questions concerning N.K.'s mental health diagnosis or history of treatment," the court said, finding that the judge had made too narrow a ruling.

The court also faulted John Lavoie, then a deputy state's attorney in Windham County, for talking to the jury during closing arguments about how some witnesses for the defense were trying to avoid perjury charges by saying they couldn't remember key facts.

"There is a difference between perjury and very biased testimony, as I'm sure all of these witnesses know, and that's why you get a lot of, 'I don't remember'," Lavoie said, according to the high court. "

"Because how can I prove whether or not they remember something when I now charge them with perjury?" the prosecutor continued. "How can I prove that? There's no way to prove that."

The court said the argument was improper.

"Even if inadvertent, the statements amounted to an expression of personal belief that the defense witnesses were lying -- a belief backed by the prosecutor's declaration that a perjury charge was deliberately frustrated by the witnesses. We have long condemned prosecutors' statements conveying their beliefs or opinions about a case."

© 2006 Associated Press.
© 2006 Brattleboro Reformer