Judge declares mistrial, orders new judge

Wanda English Burnett, Editor

Vincent E. Simon, 41 of Osgood, faces three counts of Incest that were filed in November of 2006. Just a few days before the case was set to be heard by a jury, a motion by the defense to change and have a bench trial was agreed to by Prosecutor Ric Hertel. The case was then scheduled to be heard by Judge Taul. Both sides would present evidence and witnesses with the judge deciding guilt or innocence.

The bench trial that began last Tuesday, August 14, in Ripley County Circuit Court, ended the same day in a mistrial when Judge Carl Taul recused himself.

According to court transcripts during cross-examination of the alleged victim, defense Attorney Francis Cardis asked if the witness had a bad relationship with her father (the defendant) because of Darla Westerfeld. The witness agreed she did. When asked who Westerfeld was, the witness noted that she was someone her father had a relationship with.

Prosecutor Hertel objected to the questioning asking the relevance. Defense's reply was, "Your honor, I think that..cross-examination provides an opportunity to demonstrate prejudice on the witness' part. That there was some sort of ax to grind..."

At this time Judge Taul asked to see counsel at the bench. He then disclosed that Westerfeld was a friend of his.

Cardis said he didn't know this information. When asked by the Judge what the testimony's anticipation was, the defense attorney continued "merely that this witness believed, whether true or not, that Ms. Westerfeld was having an affair with her father and she was angry that as the witness may view it he cheated on the mother."

The prosecutor noted that he felt to protect the record, the defendant should know the judge's relationship with Westerfeld and have no objection to the judge hearing the case.

Cardias continued saying for the purpose of full disclosure his client also indicated another incident involving Westerfeld.

At this time the judge called a 15-minute recess.

Upon returning, Cardias was instructed to proceed by the judge.

The alleged victim continued to answer questions under cross-examination. According to witnesses this went on for over another hour, making her testimony last over three hours.

When the testimony ended, Judge Taul excused the witness and called counsel to the bench. He then again noted he knew Westerfeld and was therefore declaring a mistrial.

Prosecutor Hertel said his initial reaction was shock. While understanding there are circumstances when people are witnesses and friends with the judge, he said Westerfeld was not on the witness list. He further noted that since she was seated in the courtroom throughout proceedings, he was confident she wouldn't be called as a witness.

"I was disappointed for the victim...that she had to go through the ordeal of testifying and now she'll have to do it again," Hertel noted.

The alleged victim's family felt outraged at the court proceedings. Her mother, Krystall Simon, noted, "What I want to know is what it takes to get a fair trial?" She said while her daughter was telling what happened to her for over three hours, it was all for naught.

"I feel like our family has had to pay for what he (defendant) did," noted the alleged victim, saying she felt as though her testimony was taken as a joke by people watching the proceedings. "I could hear people laughing, making remakrs."

"We just feel so betrayed," Krystall noted.

An order naming a special judge in the case has been filed. While it's not certain that Judge W. Michael Wilke will be able to hear the case as the order deems, Prosecutor Hertel said they will have another judge and the trial will proceed.

The alleged victim says she's waited two years for justice and while it didn't happen last week, she's willing to try again. "We were hoping this would all be over," concluded her mother.

(Editor's note: Calls made to Judge Taul's Office and Defense Attorney Francis Cardis were not returned by press time.)