BY MAIRE O’NEILL
maire@losalamosreporter.com
Editor’s note: This story may be disturbing to some readers.
First Judicial District Judge Jason Lidyard has denied a motion to review and modify conditions of release for Michael Novak who is currently being held in the Los Alamos County Detention pending trial. Judge Lidyard remanded Novak in February following a lengthy hearing and found probable cause to charge him with four counts of criminal sexual penetration of a child under 13 and one count of criminal sexual contact with a minor. The alleged victim is a nine-year old girl.
Novak’s attorneys Bill Snowden and Damian Horne told Judge Lidyard that there had been a significant change of circumstance regarding the strength of the state’s case. Snowden said that since the preliminary hearing some things had been discovered that needed to be brought to the Court’s attention. He said Det. Matt Lyon interviewed the alleged victim and the alleged victim’s mother right after the event.
“We have discovered that those tapes have been corrupted and lost. They were audio and video recorded. They are no longer in existence. The importance of that is that every time we’ve had an opportunity to review the testimony of the alleged victim – we’ve had one chance – the statements have not synced up from the other statements that the alleged victim has made. In particular, we were aware from the very beginning that there was a veracity issue with the alleged victim. Her mother indicated that to Det. Lyon. Det. Lyon went through that prior to his interview according to his notes” Snowden said.
He said when the pretrial interview with the victim was conducted, it turned “quite farcical, fantasy land”, and that the alleged victim indicated that she took a gun away from Novak and ordered that he turn over his phone and clear the passcode so she could call her mother. Snowden said the victim claimed Novak threw her into a locked room and that she shot the lock off the door and escaped only to be tracked down by Novak in his truck and returned to the home.
Snowden mentioned some details the alleged victim had provided during the interview.
“This young lady is continuing to tell different versions of events and it’s becoming more and more outlandish as we go through,” he said.
He also claimed that he was having difficulty getting things from the state, which he said is impacting things for Novak, adding that the state had executed a search warrant at Novak’s residence where they took blankets, bedding and things from the washer.
“We’re still waiting for those particular items to come back. We received a DNA report back and although there is a part that strengthens the state’s case, if you read the report in full, I believe you’ll find that it actually weakens the state’s case in that they didn’t find any DNA of Mr. Novak inside this young lady. They didn’t find any DNA on the presence of her body. She was at his house a significant number of times. It is a one bathroom apartment. She was there for essentially three days,” Snowden said.
He said sperm that was confirmed to be Novak’s was found on the alleged victim’s panties, but that because he has not received all the discovery and doesn’t have all the DNA, he is hamstrung in getting the DNA report to his expert witness.
Snowden said besides the issues with the alleged victim, an interview was conducted with the mother of the child on the same day. He said the interview lasted only 10 minutes and that the mother got up and walked out and refused to talk to the defense attorneys any further. Snowden also complained about not being given access to Novak’s phone, photos taken while a search warrant was being executed on Novak’s property and the lapel cameras from five or six officers that were also present.
“The point here is that not only has the state’s case become weaker with what we’ve seen in the evidence and the destruction of evidence by the state, we’re continuing to be hamstrung from our original date to get discovery and the person who’s suffering is Mike Novak, who is maintaining his innocence, has had his liberty taken away at much peril to his family, costs. We’d ask for a change in circumstance that would allow Mr. Novak to be out. His mother lives in Elephant Butte and she’s willing to watch him fully, stay with him. She does not work; she’s the matriarch of the family. He would abide by the rules placed on him in that regard,” Snowden said.
Assistant District Attorney Mary McCleary told the Court that discovery issues don’t really change the weakness of the state’s case unless and until the Court considers imposing sanctions that would prevent the state from presenting the truth to the jury.
McCleary also discussed the reasons there are safe house interviews for cases such as this.
“The reason we have safe house interviews – The reason that this technology exists is that children say things that are very different in terms of the statutory meaning of the accusations. This little girl has at every time done what she was supposed to do. She has given an alert to society that this man touched her inappropriately, did inappropriate things that hurt her. She has told anyone that she thinks will help her be safer that this is what happened. I wasn’t there when the interview was scheduled to be in the same building that Mr. Novak was housed in, but that’s something the research doesn’t tell us about ‘the guy who attacked you is in this building right now’, and that produced a result that I think both the state and the defense agree was not a factually reliable account,” she said.
McCleary noted that as to whether or not the victim feels safe, she feels that the victim made it very clear that her sense of safety is greatly compromised by Novak’s freedom.
“She asked four times for Mr. Snowden to promise that he would not let Mike Novak attack her during the trial. I understand that Mr. Snowden, from not having seen the DNA from the perspective of his client’s direction, to treat this as a total fabrication but that’s why we have safe house interviews – because errors in collecting statements can result in the child’s alarm coming out differently every time,” she said.
McCleary said her understanding of Det. Lyon’s interviews is that there was a huge wait for the safe house and that Lyon made the call to interview the mother and the daughter and followed his training to download those recordings, storing them on a server.
“By the time they went to us, the CDs we discovered were unreadable. At that point the servers had overwritten them. This was not a usage error; Det. Lyons could testify to that if we need it. This was an IT error; it was nothing to do with this particular case. That’s something the state has to live with at trial,” she said. “If we’re asking is this a case of a false allegation or is this a case of something dangerous to a nine-year old girl happening, male DNA was found on a vaginal swab.”
McCleary said the DNA couldn’t be identified except as male, but that it was Novak’s sperm on the alleged victim’s underwear.
“She didn’t know that was there when she told her mother what had happened. She didn’t know that was there when she told Mr. Snowden that this was the result of penile penetration into her vagina. She wasn’t making up a story to match those results. Those results corroborate the basic fact that she was a victim of sexual assault and Mr. Novak was the perpetrator,” she said. “So for the dangerousness analysis, while the state’s ability to proceed on the particular counts that are here might be impaired by her alert being fuzzy, the evidence that Mr. Snowden brings doesn’t materially affect the dangerousness analysis.”
Judge Lidyard asked if there were injuries and McCleary responded that the SANE nurse had reported injuries. Judge Lidyard said that was a particular point that was compelling to the Court, that there was immediate disclosure and that there was a subsequent evaluation that revealed injury to the genitals that could not be inflicted by one’s self. He said that was compelling to the Court in establishing clear and convincing evidence to determine that pretrial detention was necessary.
Snowden expressed concern to the Court about Novak being locked in jail for 10 months while the defense is waiting for the state to give them discovery in the case.
“Leaving him in jail while the state figures out where we are, is concerning for the defense….He could be living down with his mother on house arrest and that would give the reasonable assurances to the community,” he said.
Judge Lidyard noted that when the Court determined that pretrial detention was appropriate, the Court’s greatest grounds for which it found that the determination was ordered by clear and convincing evidence was the fact that the child testified to the Court.
“That was an immediate disclosure and that upon the disclosure an evaluation was conducted and the SANE nurse determined that there were acute injuries to the genitalia that could not be self-inflicted. And Mr. Novak was the sole caretaker of the child in the days leading up to those injuries arising. That’s strong evidence to the Court when it comes to child sexual assault and until the defense brings forth evidence to rebut that, the Court doesn’t believe that its decision has been weakened,” he said.
Judge Lidyard said the delay in providing discovery evidence to the defense is of great concern to the Court but that it doesn’t change the Court’s conclusion that there’s clear and convincing evidence that Mr. Novak presents a danger and that no conditions of release can suppress that danger.
“Issues of discovery need to be addressed, issues of late disclosure or lost or destroyed evidence need to be addressed, but until the defendant brings forth something to call into question the injuries that have been documented that would lead this Court to believe that they were sustained by some other source other than what the victim alleges occurred, the Court is not prepared to find that the two prongs for reconsideration have been filled in that there’s information that exists that was not known at the time of the hearing or that circumstances have changed subsequent to the hearing,” Judge Lidyard said. “Certainly things have changed and there’s information that is now known that wasn’t known previously, however it does not have a material bearing as to the Court’s determination regarding pretrial detention.”
Novak is expected to go to trial in April 2022.