Judge declares mistrial in abuse case | TheUnion.com

Judge declares mistrial in abuse case

Judge Robert Tamietti declared a mistrial in the case of a father and caregiver accused of abusing a severely handicapped woman, arguing a legal issue in the proceedings violated the victim’s rights.

The Nevada County Superior Court judge set a new trial date for Raymond Gamache Jr. and Dawn Renee Anderson, who have been charged with dependent adult abuse likely to cause great bodily harm.

Friday morning, their attorneys entered pleas of “once in jeopardy,” arguing the two defendants cannot be tried again for the same offense.

A hearing has been set for 1:30 p.m. April 1, with a trial date of April 13.

The issue leading to the mistrial has to do with the language of the statute under which Gamache and Anderson were charged.

It reads, in part, “Any person… who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer … or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered…”

The burden of proof for directly “causing” is different from “permitting,” Tamietti explained.

A preliminary hearing was held for the defendants, in which the judge decided whether prosecutors had sufficient information for the court to hold Gamache and Anderson to answer on the charge.

But Superior Court Judge Candace Heidelberger chose to hold Raymond Gamache and Anderson to answer only on having caused the abuse, a decision Tamietti said exceeded the court’s authority.

“You can’t perform surgery on the statute,” he said. “The order was legally defective.”

At that point, the District Attorney’s office had several legal options, Tamietti said.

“They chose not to deal with (the issue) at that time.” he said.

The trial got under way March 9 – and on March 18, Deputy District Attorney Katie Francis filed a motion that would have allowed her to try the defendants for having permitted the conditions that led to the alleged bodily harm.

“The court found it unfair to the defendants from a due process standpoint,” Tamietti said.

Tamietti could simply have denied the motion and allowed the trial to continue, but chose instead to declare a mistrial.

“The victim also has due-process rights,” he said. “That’s one of the things under Marsy’s Law the court takes pretty seriously …That statute is designed to protect a particularly vulnerable class of people – and the victim would have been denied that protection by taking the case to trial on essentially half the statute.”

The alleged victim, Tracy Gamache, has cerebral palsy and is severely physically and mentally handicapped. Her father, Raymond Gamache, and Anderson were arrested after Nevada County sheriff’s deputies conducted a welfare check at their trailer home in Penn Valley on March 24, 2009.

They were acting on an anonymous tip that Tracy Gamache was being physically abused and neglected by her father and had been tied up in the past while the father left the residence to go to a casino, Sheriff Keith Royal said at the time of the arrests.

Tracy Gamache allegedly was found sitting in a chair outside, unattended. Deputies found the living conditions inside the trailer where the trio were living to be “deplorable.”

To contact Staff Writer Liz Kellar, e-mail lkellar@theunion.com or call (530) 477-4230.

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