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Show Wed/Thurs/Fri, February 2-4, 2005 The Park Record A-2 receives new trial A touch of innocence Judge rules jurors received faulty instructions before passing judgement in 'shaken-bab/ case By PATRICK PARKINSON Of the Record staff A defense team, assembled in the wake of the October conviction of a local day-care provider, found guilty of shaking a baby in her care, has won Highland Estates resident Maria Abigail Tiscareno, 41, a new trial. In his six-page decisionfiledJan. 27, Third District Court Judge Deno Himonas ruled that Judge Bruce Lubeck improperly instructed the jurors before they convicted Tiscareno of second-degree felony child abuse, for which she could spend 15 years in prison and be ordered to pay a $10,000 One. Himonas did not address new medical evidence obtained by prosecutors that suggests the victim suffered two head injuries in the days leading up to when Tiscareno allegedly admitted she shook the boy. The decision was a response to motions filed by Tiscarenos Salt Lake attorney, Jim Bradshaw, who claims Tiscareno is not guilty of the crime. Himonas agrees a handwritten note, signed by each juror and filed with the court, casts doubts on the legitimacy of the felony conviction. "Your Honor: although we have found Mrs. Tiscareno guilty as charged, we all believe and agree that this was not a malicious act, but a tragedy for both families," the note states. According to Himonas, seconddegree felony child abuse must be "done intentionally or knowingly." If "done recklessly," its a third- degree felony, and child abuse "done with criminal negligence," is a class A misdemeanor, he adds. "Under the instructions given here, a parent who, entirely by accident, pushes a child off a swing would be guilty of second-degree felony child abuse if the child suffers a serious injury," Himonas1 ruling states. Tiscareno is "very happy to have another chance at this thing," Bradshaw said. "We're really pleased with the ruling and we're moving forward to move this case to trial," he said. "We anticipate calling a number of physicians as experts." Following the conviction, Bradshaw replaced Tiscareno's former attorney, Earl Xaiz. According to Himonas, by not objecting to the faulty jury instructions, Xaiz's performance was "so deficient as to fall below an objective standard of reasonableness." "We've still got a long ways to go," Bradshaw said. According to prosecutors, Tiscareno admitted she shook 1year-old Nathan Molineux, attempting to save his life, before calling 911 on Nov. 14, 2003, from Abby's Day Care, her home-based business in the Snyderville Basin. Expert witnesses for the state testified that Molineux suffered a severe brain injury that morning as a result of "shaken-baby syndrome." "I am pleased that the court did not find error on the part of the state of Utah. We didn't do anything wrong," Brickey said, adding that he wrote the jury instructions. Xaiz didn't request the jury con- sider a misdemeanor conviction, Brickey said, adding that jurors were told Tiscareno could be convicted of second- or third-degree felony child abuse. "She may have knowingly shook the child, but did she intend to cause this injury?" he said, about the question Himonas grappled with. "There is no case in the state of Utah where the jury has decided to send back a note like this ... I interpreted the note as not part of the verdict." Himonas prevented Brickey from entering post-verdict evidence and testimony from jurors. "We respect the judge's decision," the prosecutor said. "I am still confident that the state will prevail." The judge is expected to schedule a new trial for Tiscareno during a pre-trial conference Feb. 15, Himonas denied Tiscareno's request for an acquittal in light of the jury's note, however, new medical evidence suggests Molineux was injured prior to his father dropping him off at the day care, said Mark Moffat, a member of Tiscarenos defense team. "The issue of the new medical evidence wasn't before him," Moffat said, about a report of a scan of Molineux's brain obtained in January, where dried blood indicates the boy suffered two prior head injuries. "If this case is tried it's definitely going to be an expert-intensive endeavor." Defense attorneys obtained the report from Primary Children's Medical Center after the conviction, during discovery for a civil lawsuit, Molineux's mother filed against Tiscareno. Brickey is awaiting comment from physicians on the medical report before commenting on the new evidence. Accused killer will likely testify one point in the apartment, Hirschey had shown a rifle and a pistol to the others before putting the guns away, the prosecution said. More partying and roughhousing "I expect that he will (testify) By JAY HAMBURGER because of the nature of the defense, ensued and Hirschey and Low were Of the Record staff because it is self-defense and wrestling before Hirschey started Erik Low, the man accused of because he is the only person who taunting Low, pouring water on his gunning down Michael Hirschey can explain his actions," Brown said, head, injuring his neck and pulling Low up from behind by his underwhile the two were allegedly rough- adding that Low will likely explain 11 wear, prosecutors said. why he claims he was "forced to housing almost two years ago, will Hirschey and Low went into likely testify during his upcoming defend himself. murder trial, his attorney said. Summit County Attorney another room, where the shooting occurred. Authorities received a 911 Robert Adkins, who is prosecuting Jury selection starts at 9 a.m. on Morid'a^riire:tqa^js."SchejluIed to the case, declined to comment about call at 4:15 a.m. reporting the shoot- : ingr Kevin McCali,, who was in thelast.iweW^JAidge. Robert: pplder is the trial. apartment at the time of the shbo'^ Brown labels Low an "important p r e s i d i n g . •"--•-•"'•'•"""" Low, 37, who lives in the Park witness." He said he expects to call ing, called the authorities on a celluCity area, faces murder, theft and Low to testify toward the end of the lar phone from underneath a vehicle weapons charges. If convicted on the trial. He expects his examination of after he fled the apartment. Brown said the people in the murder charge, a first-degree felony, Low to last up to an hour He said apartment were using cocaine and his questioning will be "designed to he faces five years to life in state illicit from him facts and circum- drinking that night. prison and a $10,000 fine. An autopsy found that Hirschey He pleaded not guilty to the stances, occurrences that happened had been shot on the right side of his that night" including a recap of the three charges on Aug. 19,2003. head and his left shoulder. He died Low has not made public state- evening before the killing. "In my estimation, Erik will at the scene. ments since the May 8, 2003 killing By calling Low to testify, his explain his actions that night to the in apartment 9-B at the Parkside Apartments, 1776 Kearns Blvd. satisfaction of everyone," Brown attorney will allow the prosecution a Hirschey, a collegiate wrestler, was said. "He will tell people what hap- chance to question him as well. Brown said such a move is not danshot twice after a night of partying. pened that night." He was 38 when he was killed. Low Prosecutors outlined the basics of gerous to the defense if the prosecuis free on $250,000 bail. their case in a court filing known as tors, during their cross examination, Low's side claims the shooting an 'information' shortly after the key on questions specific to the shooting, not on tangential issues. killing. was done in self-defense. "I'm comfortable that Erik Low The prosecution claims that Low, Salt Lake City attorney Ken Brown, who is leading Low's Hirschey and two other men were will testify truthfully and his truthful defense team, said in an interview partying that night, first at the rendition of the facts will allow the on Monday that Low's planned testi- Raddisson Inn on Park Avenue and jury to make an informed decision then at Hirschey's apartment. At about his self-defense," Brown said. mony is critical. Defense attorney says Erik Low will tell jurors why he was 'forced' to defend himself JASON HUNTERSPARKRECORD Marjorie Jaques, a Wasatch backcountry rescuer, holds her 17-month-old daughter Emily as they visit their horse "Stoker" Monday afternoon In Park City. Extension for antimony granted City's mining history. Besides antimony, the city has also dealt with water slightly over the limits for a arsenic and has installed an arsenicperiod of time. removal system at Spiro. Bousfield, though, also said that The city has sought a major Cily Hall must come into compli- above-ground water source, perance with the standard b) the end haps a nearby reservoir, to pipe of the two-year er.'c^.s'en. if the water from but discussions have yet government fails to do so, he said, to result in a deal to bring water the state would require that the into Park Cily. In addition to the Spiro water source be taken out of desire for a non-contaminated service until the city is able to meet water source, the government also the antimony standard. wants to increase its water supply. "This is it. They need to get it In past summers, the city has fixed. By rule, they're not entitled neared its daily water production to another extension," Bousfield limits and the government has a said. drought ordinance on the books. Park City's water system has Park City has had little luck as it long been affected by contami- tries to devise a plan to deal with nants, largely a result of the city's the antimony and the government reliance on underground water acknowledges that cleaning arsenic, sources polluted through Park • Continued from A-1 State is calling for designers • Continued from A-1 Huntsman will receive at least five ideas from a panel known as the Utah Commemorative Quarter Commission. The state will present five ideas to the U.S. Mint, which determines the eventual design. The winner does not receive a cash award. Wood agrees that the quarter's design should highlight Utah's scenery, not its religious roots. "I would like to see natural beau-" ty instead of Mormon history," said Wood, who indicated she would not submit a design. If Wood were designing the coin, she would draw from the state's mountains and the land in Southern Utah. ' T m very partial to our mountains but I also love our red rock country," Wood said. She expects that lots of members of the state's arts community described continuing AP to the high scnool level as a "different animal" will have the opportunity to take ihan for middle schools, and said, honors classes in addition to the IB "Maybe at some point we will offerings, ihe same classes ninth- explore that." graders can take at the high school "When you have an AP program currently. Comparing IB and AP is that's one of the best in the nation, not necessarily apples to apples. why create an IB program that "IB is not a curriculum compara- appeals to virtually the same popuble to increased (work load) like lation?" said AP history teacher honors or AP," O'Connor said. John Krenkel in an earlier interAt the Jan. 11 School Board view. meeting. Vice President Kim Carson In a September letter to the edi- will submit designs. " ' ' "This is something an artist would love to have their name on and recognized for," she said. The image will appear on 450 million quarters, according to the news release. For more information, visit http://arts.utah.gov/quarter.html or call (801) 236-7547. E-mailed information is available by sending a request to quarter@utah.gov. Senate to vote on smoking ban Julander has been ill and Waddoups expects to present the places." bill to the Senate for a final vote "The workplace is a problem for when she returns this week. me because some people, that's the "[Julander is] one of the supportonly job they can get," Waddoups ers ... I want her there to vote on it," said Tuesday. "Other people can't Waddoups said. "I need all of my earn that much moneyflippingham- votes there." burgers or something." Summit County's senators were On Jan. 27, the Senate favored split last week, with Beverly Evans, the bill 16 lo 10, with three senators a Republican from Altamont who absent. Sen. Curlis Bramble, R- represents Park City, voting against Provo and Sen. Chris Buttars, R- the ban, and eastern Summit tor, former Treasure Mountain Vice West Jordan, have since changed County's senator, Allen Christensen, Principal Phil Schneider wrote, "It their votes to "nay," Waddoups said. R-North Ogden, supporting the bill. is time to get a little progressive and "They're mad at Rocky "I knew it would be close," re-examine the opportunity to have Anderson. Rocky is a proponent of Waddoups said, adding that The both AP and IB at Park City High this bill and they'll just do anything Church of Jesus Christ of Latter-day School. How could it hurt PCHS to punish him because they dont Saints was not involved in drafting students to have a choice of taking like him," Waddoups said, adding the legislation. even more college credits and seethat two senators absent during last Some "ultraconservatives" ing greater diversity in their course week's preliminary vote, Paula oppose what they view as a "freeofferings? Many schools across the Julander, D-Salt Lake City and Al county have done it, why not the Mansell, R-Midvale, are expected to dom of choice issue," he said. "If you're a musician, there's only high school in a district that support the ban. just not very many places that seeks out a spot in the top 10?" * Continued from A-1 Could IB creep into PCHS? • Continued from A-1 which carries cancer risks, from the water at Spiro was more pressing. Gibbs said technology is sparse because the problem is rare. He said the city currently plans to test an absorbing iron-based treatment. If successful, the treatment would attach to the antimony and then be flushed from the water, Gibos. said. He said the treatment is expensive but has potential. Gibbs said he hopes that the city devises an antimony plan within 12 months and the government is hoping to find a cost-effective treatment. Testing on two treatment systems is expected in the spring. "We feel that we should be able to come up with viable solution within the two-year exemption," Gibbs said. SUSHI A Fresh Approach It's Oyster Season! Oysters Shucked Daily, Oysters Casino, Chicken Fried Oysters (Succulent in Taste and limited in Availability) 435-655-0800 have live music anymore, except for the clubs," Waddoups said. "That's where the younger generation goes for entertainment." The bill does not affect smoking in hotel rooms, or areas designated for smokers at airports, he adds. "It's a bill that needs to go away. We would never entertain, I hope not, that we would start removing children from homes of smokers ... if we would never do that, then why in the world would we then look to protect adults from themselves," said Republican Rep. Gregory Hughes, a member of the House Rules Committee from Draper, who opposes SB 77. Rep. Ross Romero, D-Salt Lake City, represents portions of the Snyderville Basin and would not comment Tuesday about his position on the bill. |