NEWPORT CITY -- If Judge Timothy Tomasi was expecting to hear evidence that a rape occurred -- in a case in which the 17-year-old complainant recanted -- he was disappointed Wednesday when the state raised the specter of an interlocutory appeal of the judge's recent decision to the Vermont Supreme Court.
Last week, Tomasi issued an order saying that Deputy State's Attorney Jim Lillicrap could not rely on statements the teen made to investigators about the alleged actions of defendant Michael McFarland, 31, of North Troy, because she was not under oath at the time.
Citing a 1983 Vermont Supreme Court case, Lillicrap said that evincing a commitment from a juvenile witness to tell the truth was found to meet the standard of placing someone under oath.
The way Det. Jennifer Harlow "swore in" the then-16-year-old is a nationally recognized practice, he said, and if it is not considered testimony under oath, that affects all juveniles interviewed by police.
Lillicrap said opinions on this Supreme Court ruling diverge, and asked the court's permission to file an interlocutory appeal, an appeal that takes place before the final disposition of a court case.
If juvenile victims of sexual violence were forced to speak with police under formal oath, he said, "It will actually deter juvenile rape victims from coming forward."
Tomasi expressed frustration with Lillicrap, saying that this is the second time he's raised issues on the morning of a hearing in this case. He said he expects these things to come up in a more timely manner.
Lillicrap said he had 10 days under the statute to respond to a ruling and was well within that limit.
Brice Simon, McFarland's lawyer, said the issue does not apply to a hearing about a motion to dismiss under Rule 12 of the Vermont Rules of Criminal Procedure.
In the 1983 case, the high court reversed the finding of the family court that a child was in need of state custody because the state relied upon unsworn statements to achieve that outcome. In that case, the 9-year-old juvenile was asked if she knew the difference between the truth and a lie, but was never asked to agree that she would only tell the truth.
In this case, Lillicrap is arguing that the teen saying, "Mmm hmm," after Harlow said something to the effect of "we only talk about the truth in this room" was close enough.
"I think the state's conceding that there was no oath administered," Simon said.
While he didn't raise the issue Wednesday, Simon, in a hearing last week, complained that Lillicrap was merely using new issues to delay what he sees as an inevitable dismissal. McFarland has been incarcerated since his arraignment in April.
If Lillicrap thinks there is an appealable issue, he can file that appeal after the court dismisses the sexual assault count, Simon said. As it stands, the state has no sworn statement to support the charge.
Lillicrap said McFarland admitted giving a 16-year-old heroin and having sex with her, and he should be afforded no leniency.
"This particular victim has told three different stories under oath," Tomasi said.
The teen first claimed that McFarland forced heroin into her arm, forced her to have sex, and kidnapped her. The second story was that no rape occurred and that she took heroin of her own volition. The third version indicates that she could not consent to sex because of her impairment from the heroin.
The changes were significant enough for Lillicrap to amend a felony count of kidnapping to a misdemeanor count of contributing to the delinquency of a minor, Tomasi said.
The state wouldn't prosecute any domestic or sexual assault cases if it dismissed charges every time a victim vacillated slightly, Lillicrap said.
"I think that's understating it vastly, isn't it?" Tomasi said.
Lillicrap said he's not saying the teen's newest statement is "100 percent correct," but said the discrepancies were understandable, given the heroin and Captain Morgan she consumed.
The case is full of salacious content, Simon said, and he understands that it is upsetting to the state that anyone would use drugs.
But the only sworn testimony in the case indicates that no rape occurred, Simon said.
"I was too high to make that decision," Lillicrap said, reading from the girl's statement to an investigator.
"And certainly if that were under oath, it would support your charge," Tomasi said.
Lillicrap would contend that the mere presence of a police officer was enough to make the teen believe she would be in trouble if she lied, Simon said. But in fact, the opposite is true - the girl was told she was not in any trouble and was warned of no risk of perjury charges if she lied.
Lillicrap said he subpoenaed the girl and her father -- who received her first statement indicating that no rape occurred -- but neither appeared for the hearing.
If she's not willing to show up now, it is unlikely she would show up for trial since she's made it clear she's not willing to assist the state in its prosecution of McFarland, Simon said.
Simon asked the court to reconsider McFarland's $500,000 bail, since it appeared to him that a dismissal is imminent. The state does not have strong admissible evidence of guilt, Simon said.
Lillicrap said he took issue with that statement and said he has substantial evidence in the girl's statement - which he believes was taken under oath.
"Respectfully judge, we simply disagree on that point," Lillicrap said.
Tomasi said he'd take the issue under advisement and issue a written decision.