COA allows second deposition of alleged child molesting victim

An alleged child molesting victim must be deposed by her alleged molester’s defense team again, the Indiana Court of Appeals has ruled, finding the defendant is entitled to take a second deposition as he prepares for a second trial.

In Jeffrey Archer v. State of Indiana, 20A-CR-1677, Jeffrey Archer was convicted of Class A felony child molesting and two counts of Class C felony child molesting of L.B., his step-grandchild. Archer’s convictions were upheld on direct appeal in 2013,  and the Marion Superior Court subsequently denied his petition for post-conviction relief.

Archer appealed that ruling as well, and after initially upholding the denial, the COA on rehearing reversed and remanded for further proceedings. The court’s opinion on rehearing reexamined Archer’s argument that his appellate counsel was ineffective for failing to argue on direct appeal that an obviously biased juror who had been challenged was permitted to serve on Archer’s jury.

As Archer began to prepare for a new trial on remand, his new lawyer informed the state that she needed to depose L.B., who is now almost 18 years old. The state objected, noting L.B. was deposed for the first trial. The state then moved to quash the deposition, and the trial court granted the motion.

The Court of Appeals reversed Monday on interlocutory appeal, with Senior Judge Carr Darden noting “Archer continues to face very serious charges with new counsel who is entitled to develop her own theories and strategies about defending her client.”

Using the three-part test under Dillard v. State, 257 Ind. 282, 274 N.E.2d 387 (1971), the appellate panel ruled that “the State did not meet its showing of a paramount interest in non-disclosure … .”

Under the first step in Dillard, the panel determined Archer’s request to depose L.B. had requisite particularity. Archer’s new counsel argued she needed to determine what L.B. remembers now versus at the time of the original trial and ask questions that were not asked before.

On the second step, relevance, the COA held that “it would be unfair to prohibit Archer’s new trial counsel from discovering what L.B. remembers and the language she uses today to describe the events of more than seven years ago. Further, her belief structures regarding the concepts of ‘good touch/bad touch,’ may or may not be different from the pertinent time period.”

“We also observe notions of fundamental fairness,” Darden wrote. “It would be unfair to the defendant to limit him to a defense strategy, poorly or well-formed, that was adopted to address a victim aged eight or nine, when that victim will be testifying in his new trial from the life experience of a nearly grown adult.”

Finally, the panel ruled, the state failed to meet the third step of Dillard: proving a paramount interest in non-disclosure.

“On balance, given the sentencing exposure of the defendant – between 20 and 50 years – versus the uncomfortable feeling of having to be deposed (similarly experienced by most deponents) and testifying, this record weighs in favor of granting trial counsel’s request to depose L.B.,” Darden wrote. “As the alleged victim, L.B.’s testimony will be the centerpiece of the State’s case-in-chief. Under the circumstances of this case, the defendant should be allowed to discover what her presented testimony will be and prepare his defense accordingly.

“The trial court retains the authority to ensure that the deposition addresses relevant issues and is not unduly burdensome to the deponent,” the senior judge added.

The case was remanded for further proceedings.

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