By DAMIEN FISHER, InDepthNH.org
CONCORD — Destroyed state records and expert witnesses who lack expertise are now taking center stage for the state’s defense in the Saddleback Mountain Retreat sex abuse lawsuit.
Sexual abuse survivor Kristy Gesse is suing the state for placing her in a contracted group home, Saddleback in Deerfield, where she was repeatedly raped by owner Peter Tsetsilas before being rescued in 1993.
Deputy Solicitor General Sam Garland and his team began their defense Wednesday in Merrimack Superior Court in Concord, calling witnesses to discuss how DHHS records are normally destroyed, though adding little to the facts already presented.
The lack of records in state possession is a damning aspect to the case against DHHS, as lawyers for Gesse showed they received almost no documents from DHHS, the Division for Children, Youth and Families, the Department of Safety, or the Department of Justice during discovery for the case. Also lacking were any official memoranda or notices of the relevant records being destroyed under the normal circumstances.
DHHS Chief of Childcare Licensing Melissa Clement, and Deputy Secretary of State Brendan O’Donnell both testified on the current procedures for destroying old and irrelevant paper records. Clement said there is no requirement in DHHS to create a destruction memo for records no longer deemed necessary.
O’Donnell testified that staff at the state Archives do create destruction memos when records are destroyed, but he could not say if any Saddleback-related documents had been destroyed by the Archives staff.
The 1993 DHHS investigation into Gesse’s abuse, which sustained her accusations, isn’t anywhere. Nor is the 1985 investigation of rape allegations against Tsetsilas.
Evidence presented to the jury shows Tsetsilas was accused of raping a different girl, L.O., in 1985 and Department of Health and Human Services officials seemingly pressed L.O. to drop the case. Those records were not kept by any state agency, but found in the basement of the retired State Trooper who investigated L.O.’s story.
Garland plans to call three more witnesses on Thursday before resting the state’s defense, including expert witness Matthew Madaus. The problem with Madaus, according to Gesse’s lawyers, is that he cannot offer expert opinions.
A 30-year licensed social worker, Madaus is expected to testify on the L.O. investigation and give context to why it was not pursued by police or DCYF. But Gesse’s attorney Nathan Warecki argued that Madaus lacks the qualifications to make those opinions.
“He has no experience in child welfare, or law enforcement, or child sex abuse investigations,” Warecki said. “He is a licensed social worker who never worked for a child welfare agency.”
Judge John Kissinger said he is inclined to allow Madaus to testify, but that may not be great news for the state. Kissinger noted that Gesse’s lawyers are free to ask about his qualifications on cross examination, and try to discredit his testimony in front of the jury.
“It’s the jury’s job to believe any individual witness. I think there’s plenty of cross examination material here,” Kissinger said.
There is a good chance all of the testimony will be completed by the end of the day Thursday, or after the morning session on Friday. In either case, closing arguments are likely to be presented on Monday.