Judge threatens to jail both lawyers at incest trial

THOMPSON FALLS, Mont. - The already week-long trial where Douglas Guill faces sexual assault and incest charges hit a different note Tuesday in Thompson Falls as Judge Deborah Kim Christopher threatened to jail the lead attorneys on both sides.

Prosecutor Daniel Guzynski and lead defense attorney Michael Sherwood were discussing the admittance of testimony with Christopher on the record after the jury was excused for a recess around mid-day. The two men broke into argument with each other briefly and Christopher became angry with their behavior.

“I'm going to put both of you guys in jail and you can sit down there and talk it out,” Christopher said.

She expressed disapproval of Sherwood addressing Guzynski with something he objected to instead of her, telling them that if they had something to say they would represent it to the court, not each other.

Christopher directed the two attorneys on exactly what questions they would be able to ask, warning them that if they didn't play by the rules someone might be “clicking their heels in the Sanders County detention facility.”

On the stand for the defense was Dr. Janice Ophoven, a pediatric forensic pathologist who works as a medical examiner for St. Louis County in Minnesota. Ophoven also is commonly hired to serve as an expert witness in legal cases involving medical matters.

Ophoven, whose testimony lasted all Tuesday morning, explained to the jury how a medical examiner makes a diagnosis. She also gave them a crash course tutorial on the anatomy of female genitalia, drawing diagrams on a flip chart. Sitting in with the prosecution was Dr. Karen Mielke of First STEP Resource Center in Missoula, who testified earlier in the trial for the prosecution.

Ophoven said that she had reviewed the video taken during the alleged victim's examination at First STEP Resource Center. She noted the same injury, or “defect” as she called it, that Mielke testified to March 6. Ophoven said that her interpretations of the alleged victim's injury were that it could have been caused by either consensual or nonconsensual sex. Ophoven also said that there was no way to tell whether the injury was post or prepubertal.

Ophoven's testimony was contradictory to what Mielke said Thursday when asked how she thought the injury was sustained. Mielke testified that an injury like the alleged victim's is most likely caused by birth-giving, brutal rape, or prepubertal sex. She said the injury to the alleged victim's genitalia is consistent to the allegations of sexual assault.

Ophoven said she disagreed with the idea that the injury must have been caused by nonconsensual sex and that it is just as likely the sex was consensual.

“It looks like this person had sex,” Ophoven said. “It's just that simple.”

Guzynski focused a large part of his cross-examination on Ophoven's background and her authority in the matter of child sexual abuse, trying to illustrate her level of expertise in this case. He asked her about a number of certifications, which Ophoven did not have, though she has worked in the medical profession for over 30 years.

Guzynski called Mielke back to the stand for rebuttal and began by asking if she is board certified in pediatrics, which Mielke is. He then asked her if she would ever consult the forensic pathologist in Missoula in a case concerning child sexual abuse. “No,” Mielke said. “For the same reason I wouldn't go to an asthma doctor for a toothache.”

Mielke used the diagrams drawn by Ophoven to show where she disagreed with her opinions of the alleged victim's injury and where she disagreed with some of Ophoven's representations of the anatomy. After Ophoven's testimony, Mielke's testimony and then Ophoven's testimony again, the defense shifted away from the subject of professional medical opinions as Sherwood called the alleged victim to the stand. She testified for hours Wednesday, but her time on the stand was much quicker this go around.

The only questions asked Tuesday were those concerning her sexual history after she moved away from her father's home in Heron. The alleged victim's sexual history would normally be kept private by rape shield laws. However, due to the testimony by Ophoven that the alleged victim's injury is consistent to someone who's had sex, the court has allowed some leeway.

After Guill's daughter took the stand briefly, the defense called three more witnesses. A counselor in Sandpoint who meets with the alleged victim and her mother, a friend and former roommate of the alleged victim, and Sanders County Undersheriff Rube Wrightsman each testified before court adjourned Tuesday. Sherwood next planned to call Sanders County Deputy Martin Spring, but informed the court that his testimony would most likely be lengthy.

The trial will be interrupted for a day and a half so that Christopher can tend to business in Lake County, and it will resume 1:30 p.m. Thursday.