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Attorneys spar over possible use of expert witness at Scannell trial

The special prosecutor handling the criminal sexual conduct case against Cook County Attorney Tim Scannell wants to call an expert witness at his upcoming trial to testify that Scannell “groomed” a 17-year-old girl before engaging in sexual contact with her.

Scannell’s defense attorney vocally opposed the prosecutor’s plan during a pre-trial hearing Thursday, arguing that allowing the witness to testify would, in effect, take the fact-finding power out of the jury’s hands and label Scannell a sex offender.

Judge Shaun Floerke didn’t hesitate to acknowledge that he needed some help in deciding how to proceed. He took the matter under advisement and said he would rule on it next week.

“I’ve never encountered this issue directly,” Floerke, the 6th Judicial District’s chief judge, told the sharply-divided attorneys.

Until recently, it appeared there would be few pre-trial issues to resolve at Thursday’s hearing, the final court date before Scannell’s July 21 trial. However, the defense in recent days has raised objections to the planned testimony in correspondence to the judge.

The facts of the case are essentially undisputed: Scannell acknowledges that he had a relationship with the 17-year-old, kissing her and touching her sexually. However, the attorneys dispute whether Scannell was in a “position of authority” over the girl at the time, which determines whether or not a crime was committed.

Thomas Heffelfinger, the former U.S. Attorney for Minnesota who has been appointed to prosecute Scannell, told the court Thursday that he made the decision to retain an expert witness after he learned that the defense may present evidence about the alleged victim’s personality.

The witness, Dr. Amanda Powers-Sawyer, a White Bear Lake-based psychologist who regularly conducts psychosexual evaluations of dangerous sex offenders, conducted a review of the case’s evidence at Heffelfinger’s request. In an 18-page report, she concluded that Scannell exhibited signs of grooming — the practice of sex offenders to befriend and build trust in children before sexually abusing them.

Heffelfinger said Minnesota case law allows an expert witness to testify about not only the concept of grooming, but also to offer opinions about a specific case.

“We believe there is at least four months of grooming behavior by the defendant to develop trust, attention and reliance that allowed the (sexual conduct) to happen in the first place,” Heffelfinger told the judge. “That evidence is helpful to the jury in understanding the facts of the case.”

Defense attorney Joseph Tamburino said he had just learned of the prosecutor’s attempt to call Powers-Sawyer. He had a decidedly different interpretation of case law, arguing that grooming experts should only be allowed to testify in cases where young children delayed reporting abuse, and only for the purposes of helping the jury understand why young children don’t always immediately report abuse.

Tamburino said none of those parameters fit Scannell’s case. Furthermore, he said, allowing the witness’ testimony would imply that Scannell had already been deemed guilty.

“Quite frankly, I’m baffled,” he said of the prosecution’s plan to call the psychologist. “I thought this was going to be a clean trial, until this expert grenade was thrown.”

Tamburino asked Floerke to prevent Powers-Sawyer from testifying. If she is allowed to take the stand, Tamburino said he would like a continuance so he can take the time to hire his own expert to conduct rigorous psychological exams on Scannell.

“I’m not going to go out and hire a tit-for-tat expert,” Tamburino said.

Heffelfinger submitted a legal brief in support of the expert’s testimony to the court Thursday. Floerke ordered Tamburino to submit a brief by Tuesday. After that, Floerke will take a day or two before deciding whether to allow Powers-Sawyer’s testimony.

The trial is officially a Cook County case; however, it was moved to Duluth at the mutual request of the attorneys. Jury selection is expected to begin on July 21, with the trial lasting a full week.

Scannell, who remains on medical leave from the county and is not seeking re-election this fall, did not attend Thursday’s pre-trial hearing.