Judge orders mistrial in child molesting case

Clark County

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Jerry L. Askren

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July 29, 2010

Statements made at trial ruled not admissible

By MATT THACKER Matt.Thacker@newsandtribune.com The News and Tribune Thu Jul 29, 2010, 04:59 AM EDT

NEW ALBANY — A rare mistrial was declared Wednesday morning in the case of a Clarksville man accused of molesting a young girl at her home in New Albany.

Floyd County Superior Court No. 1 Judge Susan Orth granted a mistrial after the alleged victim’s mother, testifying before the jury on the second day of trial, made a statement the judge previously ruled was not admissible.

Jerry L. Askren, 62, was charged in August of 2009 with class A felony child molesting and with being a repeat sexual offender.

Prosecutors alleged he was taking care of a then 3-year-old female relative at her mother’s home in New Albany in May of 2009. The mother returned home and found blood in the girl’s panties and on the toilet.

She took the girl to the hospital, and a sexual assault examiner reported injuries “highly concerning for attempted penetration,” according to a probable cause affidavit.

Askren reportedly admitted to police he was the only adult present the night the blood was discovered. He later failed a polygraph examination, according to the Indiana State Police.

“We filed a motion in limine to exclude an alleged statement that I believe is not only inflammatory but fictitious,” Askren’s attorney, Jennifer Culotta, said.

The mother had alleged that her daughter told her that Askren had drooled on her, and after the alleged molestation was revealed, she thought the daughter’s statements may have been significant. Orth ruled that the statement was not allowed at trial.

Culotta said they re-urged the motion again Wednesday morning before the girl’s mother took the stand to testify.

“A question was asked, and the witness blurted out quite loudly the fictitious statement,” Culotta said.

She requested a mistrial, believing the statement would prejudice the jury. Culotta said her client has been incarcerated almost a year, and she was very upset that the case is being delayed even further.

“No one likes a mistrial,” Culotta said.

Floyd County Deputy Prosecutor Tim Gray, who handled the case, deferred all questions to Prosecutor Keith Henderson.

“I disagree with Judge Orth that it results in a mistrial. However, the judge has the final say,” Henderson said.

Many familiar with the justice system in Floyd County say judges declaring mistrials is extremely rare.

A court clerk said Orth commented she had never granted or even had a motion for mistrial since she was appointed judge in 2004 and could not remember being involved in a mistrial as a prosecutor.

“It’s an extremely rare remedy for that,” Henderson said. “These are the times it becomes frustrating being a prosecutor and trying to pursue justice.”

Henderson said the state spent $3,000 to fly in a DNA expert from Texas on Wednesday. He said he will now have to find another $3,000 to fly her to Louisville again for the next trial.

Henderson said prosecutors will instruct their witnesses what statements are not allowed in trial, but he said they can become emotional when being questioned on the stand.

“No trial is perfect,” he said.

A new trial is scheduled for Nov. 15. Although a request for a speedy trial was made, Culotta said the new trial date is delayed partially due to her scheduling conflicts with other trials.

Askren faces 20 to 50 years in prison if convicted of the class A felony plus an additional 10 years as a repeat offender.