- Associated Press - Monday, July 27, 2015

ANCHORAGE, Alaska (AP) - A Fairbanks man convicted in 2013 of sexually abusing two young girls will have his case reviewed after the Alaska Court of Appeals determined the children’s videotaped testimony did not receive proper scrutiny by the trial judge.

The ruling came in the case of Arthur Augustine, 60, who was sentenced to 396 years in prison for four felony counts of sexual abuse of a minor.

The three-judge Court of Appeals ruled that a judge who allows children’s video testimony, sparing them from testifying in court, must review the interviews to determine whether recorded statements were taken in a neutral manner without influencing the witnesses.

A judge must also determine whether the taped testimony is reliable and trustworthy.

That could mean future interviews of children by neutral parties rather than police investigators.

“That’s certainly what a lot of people are hoping happens,” said Susan Orlansky, who represented Augustine in his appeal.

The judges ruled that Fairbanks Superior Court Judge Michael McConahy failed to fulfil his role as “evidentiary gatekeeper” and sent the case back to him for reconsideration of whether the children’s out-of-court statements should have been heard by the jury.

The state’s evidence that led to the conviction, the judges said, was based almost entirely on out-of-court statements by the children conveyed to the jury by video and by hearsay from adults.

An Alaska State Trooper investigator, Yvonne Howell, interviewed the 7- and 5-year-old girls.

Augustine’s trial lawyer presented a report by a forensic psychologist, Dr. John C. Yuille, who said Howell’s interviews were characterized by leading questions and included multiple-choice questions, which allow children to guess one of the alternatives. The sessions were an attempt to prove what the interviewer believed had happened rather than an open-ended investigation, Yuille said.

The judge ruled the children’s statements could be seen by the jury. He made no findings on factual contentions raised by the defense attorney, judges said, or criticism by the forensic psychologist. He said the defense attorney could cross-examine the children or Howell on her methods.

Appeals Court judges, however, said that was not the intent of legislators in 2005 when they approved rules concerning children’s video testimony. The chief sponsor, former Sen. Hollis French, D-Anchorage, testified at a hearing that interviews would have to be conducted by interviewers specially trained to work with children, letting them tell their story “without leading the child … to an incriminating statement.”

Lawmakers also made it clear a judge should review statements to make sure they were trustworthy.

“The idea is to put kids in a situation where they can talk and be interviewed by somebody who doesn’t have preconceived ideas about what had happened,” Orlansky said. “The investigator typically will have some ideas about what happened.”

One of Augustine’s convictions was set aside for another reason by the Appeals Court.

Judge McConahy, Orlansky said, could conclude the children’s statements were reliable and retain the remaining three convictions. He could order a hearing or toss out the video interviews and reverse the convictions.

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