Published: December 19, 2007 10:50 am      

Kiger trial ends, ruling on hold

CLINTON — Testimony continued Tuesday in the adjudication hearing for Shawn W. Kiger being held in Clinton County Juvenile Court.

Iowa Juvenile Home Service Worker Anne Aubrey was the first witness called to the stand by Assistant Clinton County Attorney Ross Barlow on Tuesday morning. Aubrey read a confidentiality statement as advised by the Iowa Attorney General’s Office stating she could not answer questions unless ordered to do so by the court. Barlow asked the court to order Aubrey to answer questions. Defense Attorney Jack Wolfe resisted the request, saying Aubrey was being asked to testify to an incident that occurred while Kiger was in a therapeutic setting and his conduct was protected by privilege.

Judge David Sivright Jr. ordered Aubrey to answer questions concerning Kiger and advised Wolfe that he could issue objections as the questions were asked. Under questioning by Barlow, Aubrey testified that she works in the cottage where Kiger was placed after his arrest and worked with him on a daily basis. Barlow asked if Aubrey recalled an incident involving Kiger on Sept. 2. Aubrey said the incident involved Kiger being placed in a quiet room by a co-worker but did not remember the reason why he was placed there. She said Kiger had been moved from the quiet room to a locked control room because he yelled out statements that she heard from the hallway. She told the court she remembered one statement specifically.

Aubrey said Kiger yelled, “‘So I killed my (expletive) niece. So what are you going to do about it? I’ll kill you too.’”

She noted the statement had been recorded in a incident report document which Barlow showed her on the stand and she affirmed the document and statement. Barlow asked if she had any further contact that day and Aubrey said she let Kiger’s counselor, Deb Chardoulias, know about the incident so Kiger could be monitored.

On cross-examination, Wolfe asked if Kiger had been receiving counseling for post traumatic stress disorder. Aubrey replied that she wasn’t sure if he was or not. Wolfe asked how Kiger was doing in the program and Barlow objected on the grounds of relevancy. Wolfe moved on and asked if Aubrey was aware of the newspaper articles surrounding the case. Aubrey said she was because the articles were removed from the newspaper before being given to the youth at the home and were kept away from Kiger. When asked, Aubrey remarked that the threat had been directed at someone else and that person had not been attacked by Kiger.

After Aubrey was dismissed as a witness, Barlow called Chardoulias to testify. She also read the confidentiality statement and Wolfe again issued an objection to her answering questions. Sivright overruled the objection and instructed Chardoulias to answer the court’s questions. She said that she has been employed as a youth counselor in the Iowa Juvenile Home in Toledo for 11 years and served as Kiger’s primary counselor since the day he arrived at the home.

Chardoulias said that in early September she received a memo from the home’s staff regarding the incident and was aware Kiger had made statements saying he was responsible for the death of his “niece.” Wolfe objected, saying the previous testimony involved something the witness had heard directly and the current testimony was not. Sivright overruled the objection.

Barlow asked her reaction to that information and Chardoulias said that she spoke with her supervisor and Aubrey before speaking with Kiger in order to determine his “level of anger toward staff or anybody,” She said she talked with Kiger on or about Sept. 6 regarding the control room incident and said he was “relatively calm” when the discussion occurred.

Wolfe renewed his objection, saying the testimony involved comments made in a treatment setting. After counsel approached the bench to talk with Sivright, Wolfe withdrew his objection.

Barlow asked Chardoulias if Kiger acknowledged making the comment and she replied that he had. She said she felt like Kiger downplayed the incident and said he was upset because his court date was coming up and it was on his mind. She added that he stated he was having nightmares and could see Arryana Clark’s face.

Under questioning by Barlow, Chardoulias said that she has had an estimated 100 to 500 clients in her 11 years at the home. She admitted that it is not uncommon for clients to threaten staff or make a threat to kill staff, but said none have stated that they have killed someone.

“I’ve never heard that. In 11 years, I’ve never heard that,” Chardoulias said.

Wolfe asked if Chardoulias was aware of the allegation that Kiger had been responsible for the death of a child when he was admitted to the home and she acknowledged that she was aware of the allegation. Wolfe asked if part of Kiger’s counseling was to address the probable consequences of that action. Chardoulias stated that the counseling did not target the incident itself but focused on targeting family issues. Wolfe had Chardoulias reiterate that Kiger had offered an explanation that the statements were made in anger because he was worried about his court date and no physical attack occurred.

In re-direct, Barlow asked Chardoulias if there had been any incidents where Kiger made a threat and followed through on it. Wolfe objected to the question and Barlow stated that Wolfe had “opened the door” to that line of questioning. Sivright disagreed and sustained the objection.

The prosecution rested its case. Wolfe said the first defense witness was not scheduled to appear in court until the afternoon. Sivright ordered the court into recess until 1:30 p.m.



Defense

By Danica Baker

Herald Staff Writer

CLINTON — As testimony in the Shawn W. Kiger juvenile adjudication hearing continued on Tuesday afternoon, Clinton County District Judge David Sivright Jr. heard from an expert witness for the defense.

Defense Attorney Jack Wolfe opened his argument by asking the court to take cognizance of issues raised in Kiger’s competency hearing and hearing to determine whether the case should be heard in juvenile or adult court. Wolfe said the issues raised relate to Kiger’s state of mind and mental capability and asked that two evidentiary depositions submitted during the competency hearing be entered in the case.

Assistant Clinton County Attorney Ross Barlow objected on the basis of relevance and noted that the state had not been given notice of an affirmative defense. Secondarily, Barlow pointed out that both depositions were hearsay and neither person offering the opinions were present or could be cross-examined. Sivright said he would take the suggestion under advisement, but could not rule on the relevancy of the documents until he had read them.

Wolfe then called Dr. Richard McLay as an expert witness. McLay stated that he has a doctorate in engineering mechanics and is an adjunct professor in the Department of Biomedical Engineering at the University of Iowa. He remarked that he reviewed Kiger case materials and performed a simulation of the alleged fall and a structural analysis of Clark’s skull. Wolfe asked McLay if based on those analyses, he had an opinion whether the fall could have caused the injuries Clark sustained. States Attorney James Kivi objected to the question, saying there is no evidence that McLay could testify to that effect. Sivright agreed and said the argument needed more substance, noting that Wolfe had not presented evidence that McLay simulated what reportedly occurred.

Wolfe continued in his questioning and McLay said that he was provided witness accounts of how the injuries occurred. He said he based his evaluation on the assumptions that a child was being held by the defendant in a standing position directly adjacent to a night stand when the child fell from Kiger’s arms and struck the nightstand corner. Wolfe asked for McLay’s opinion again and Kivi objected on the grounds that there was a lack of foundation that the witness was qualified to testify to that effect given there was no evidence of a medical background. Sivright agreed and noted Wolfe still had things to fill in.

Wolfe asked McLay to explain his training and McLay stated that the field of biomechanics is the structural analysis of the human body. He noted that he has worked on three cases of a similar type, two of which involved a fall and one which involved a small impact, possibly from a baseball bat. McLay said he was able to examine the nightstand and fan from the residence and advised the key dimension was the height of the table at 25.5 inches. He said using that information and the height of the defendant, 5-foot 5 inches, determined the fall distance to be three feet. He said he wrote a basic differential equation and when solved numerically, determined the impact on the table to be approximately 14 feet per second or roughly 10 miles per hour. He noted the speed could have been more because of the rotation or angle of the child falling.

Following another objection by Kivi regarding a question about the structural analysis of a skull and McLay’s findings, Sivright asked Wolfe to focus his questions and make them relative to the case at hand. McLay said he performed his analysis utilizing information offered in Clark’s autopsy report. He referenced a formula used for structural analyses contained in a book by a engineering mechanics professor from the University of Wisconsin. He described that placing a load on a thin shell, would result in a fracture. Kivi objected, saying the information was hearsay and not allowed as an exemption under the hearsay rule. Sivright rejected accepting the referenced document into evidence as a defense exhibit.

McLay said that according to Young’s modulous the ultimate strength of a child’s skull is approximately 10 pounds per square inch and likened it to a moderate strength plastic. He stated that the skull is like a windshield when struck by a rock, leaving at first a starburst that later expands in varying shapes and directions because both glass and bone are brittle materials. He noted that a simple movement can spread the cracks.

Upon cross-examination by Kivi, McLay admitted that he had not attended medical school but researches his information and performed his studies based on the case information available to him. He stated that his analysis was conservative but showed that the child could have suffered the injuries in a three-foot fall. Kivi asked if the child could have suffered the fractures from striking the flat surface of the table and McLay said it was possible, but the fractures would have occurred over a larger area of impact and he assumed the edge of the nightstand because it would do more damage.

Kivi asked if the force described could have occurred when potentially slammed against a wall or floor and Wolfe objected, saying there was no evidence to suggest that instance occurred. Sivright said it was permissible for Kivi to posit alternative theories. McLay said yes, there were a whole range of possibilities and acknowledged that if the child had been pushed away, the fall speed would have been greater.

After dismissing McLay as a witness, Wolfe said that he and Kiger discussed the possibility of Kiger testifying and agreed that Kiger would not take the stand. Wolfe said he believed all the relative evidence is before the court. Sivright asked Kiger if he had plenty of time to discuss the decision with his attorneys and was relying on their advice in his decision not to testify. Kiger answered affirmatively.

Before closing the hearing, Sivright said that he was not sure he could sufficiently review the information and issue a ruling before leaving for vacation on Thursday. He noted that he has another pressing matter under advisement with a great deal of information related to the case and would review both cases upon his return on Dec. 31.

Sivright approved a proposal from the state to place Kiger back in the custody of the Iowa Juvenile Home until the case resumed. Kiger had been housed at the Scott County Juvenile Detention Center during the course of the hearing. Sivright advised both parties to the case they could file closing arguments in writing by Dec. 31.