Judge declares mistrial in Bourne child sex assault case
Stephen Bourne (left) talks with his atorney, Mark Sisti, at Merrimack County Superior Court, after Judge Richard McNamara declared a mistrial in the sexual assault case against Bourne; Thursday, January 24, 2013. (ALEXANDER COHN / Monitor staff)
A judge declared a mistrial yesterday in the case of Stephen Bourne, a Concord man accused of repeated and brazen sexual assaults on a young girl that prosecutors say often took place while her mother, unaware of the abuse, sat in the same room.
The case fell apart when the mother took the stand Wednesday and told the jury that Bourne had showed her daughter pictures on his phone of “girls without many clothes on.” While it was unclear whether she meant child pornography, the testimony was problematic and according to Bourne’s lawyer, Mark Sisti, so prejudicial that its affect on the jury couldn’t be cured simply by telling them to ignore it.
Merrimack County Superior Court Judge Richard McNamara called the evidence “explosive,” and after breaking for the evening, he called a mistrial yesterday morning.
“Justice will not be done if this case proceeds,” he said, offering little reasoning for his decision and saying he would issue a written order soon.
As McNamara made the announcement, 53-year-old Bourne took a deep breath and leaned his head back but showed no sign of relief or frustration.
Deputy Merrimack County Attorney Catherine Ruffle said yesterday she intends to retry the case. Bourne is also scheduled for another trial in March on charges that he possessed child pornography.
Though he had requested a mistrial, Sisti called the outcome disappointing, saying he was “quite happy with the way the case was going.”
The proceedings were clearly painful for the now-12-year-old girl who accused Bourne of sexually abusing her between 2009 and 2010 during their regular movie nights at his home. Ruffle said in her opening statement the girl would sit in Bourne’s lap, their bodies covered with a blanket that shielded both the girl’s mother and Bourne’s wife, Janet, from seeing the assaults take place.
As the girl took the stand Wednesday, sitting stiffly in a white sweater buttoned to her neck, she struggled to describe the incidents, at times contradicting both her own statements and the version of events Ruffle laid out for the jury. She was timid and soft spoken. And she paused for long periods while Ruffle tried, through several strings of questions, to draw testimony about where Bourne had touched her.
Finally, the girl said it was where she goes “to the bathroom.”
But Sisti tried to show the jury Wednesday the girl’s story has changed since she first reported being assaulted to her doctor in 2011. Dr. Patricia Clancy testified that the girl had not told her Bourne penetrated her with his fingers.
The girl testified that she had shared that detail with Clancy.
Sisti noted the contradiction as a key reason he felt confident in how the trial was progressing. But he said the mother’s testimony, which came at the end of the day Wednesday, was too inflammatory for the proceedings to continue.
The mother’s testimony
The mother, who is not being named to protect the identity of her daughter, became confrontational during Sisti’s questions. But even before that, the woman had trouble giving succinct responses, either answering quickly and then continuing to other topics or being unresponsive to the questions.
“I was asking about (your daughter’s) demeanor prior to the office visit with Dr. Clancy. Could you tell me, did this occur before Dr. Clancy came into the exam room?” Ruffle asked.
“During the 20 minutes when we were waiting for Dr. Clancy to come (she) went from ‘I do not want to be touched’ to . . .,” the mother said.
She continued the last few words despite the judge’s attempts to cut her off.
“Wait, wait, wait a minute,” McNamara said. “I think you need to listen to the question. She’s asking you about (your daughter’s) demeanor.”
“She was in hysterics,” the mother said, again speaking over the judge.
“Okay. Okay. In response to Mrs. Ruffle’s questions, why don’t you answer it,” the judge said. “The question, I believe, was describe her demeanor. Not what she said but her demeanor.”
The mother answered, but as Sisti began his questioning, the woman didn’t follow the judge’s instructions.
The girl had testified that Bourne once came to her home in 2011, touched her on her back in a way that made her uncomfortable and asked to take a picture of her on his phone. When the mother was asked about that day, she testified she had gone outside looking for Bourne and her daughter.
Sisti asked her whether she saw him take a picture of the girl.
“I did not see. He put it in his hand, in his pocket and he went off through the gate and into his car in a second,” she said.
So Sisti asked the mother whether she had questioned what Bourne was doing.
“I did not ask him,” she said. “I asked my daughter.”
“And . . .” Sisti said, posing another question.
But the woman continued speaking.
“ ‘Mommy he was showing me pictures of girls without many clothes on. I didn’t like it.’ That is exactly what she said and continued to say for days after that and months after that and a year after that,” the mother said.
McNamara dismissed the jury a few moments later. Before they returned, Sisti requested a mistrial.
And while Ruffle argued the pictures could have been of girls in bathing suits, meaning Bourne hadn’t been accused of any crimes beyond the ones he was on trial for, McNamara didn’t seem to agree, noting that the girl appeared to be traumatized.
Sisti yesterday called the mother’s claim “false testimony” and said the woman hadn’t made that disclosure before in police reports or interviews.
The mistrial is just the latest snag in the case.
Bourne was first scheduled for trial in October but a judge called it off shortly before the jury entered the courtroom. In a statement dated that day and now filed in court, the girl backpedaled on the information she initially told the police, writing that she didn’t remember Bourne touching her “privates” or “chest area.”
The trial was postponed and Sisti filed a motion to dismiss the case. Ruffle objected, saying the girl hadn’t distinguished between the abuses alleged to have taken place at her home in Contoocook, which she no longer remembered, and at Bourne’s home, which she still felt comfortable testifying about.
Before the trial began Tuesday, Ruffle dropped two of the charges against Bourne, leaving only one charge of aggravated felonious sexual assault in Concord and two counts of simple assault in Contoocook.
Because the judge said the mistrial wasn’t the state’s fault, Ruffle can prosecute Bourne on the same charges again.
Ruffle declined to comment on whether the girl and her family would like another trial. While saying she intends to continue with the charges, Ruffle added that if the family decided the process was too painful she would likely respect their wishes.
“Everything has a price tag attached to it,” she said. “And the decision of whether to go forward or not has to be considered as to what cost that brings to the family and the experience they’re going to have to go through.”
McNamara didn’t say yesterday when the trial could be rescheduled. Bourne could end up facing the child pornography charges first, as that case is scheduled for a March 18 jury selection.