A nearly hour-long hearing on the admissibility of evidence in a convicted sex offender’s sentencing proved fruitless Tuesday when the man asked for and was granted new legal counsel.
Judge John C. Kissinger Jr. ruled after a closed-court session with Richard Waite, 49, of Hinsdale and Waite’s attorney Matthew E. Hill that there’d been “a fundamental breakdown of the attorney-client relationship.”
As a result, Kissinger said a hearing on a pending defense motion could not continue with testimony from Hinsdale Police Chief Todd A. Faulkner and Mark J. Myrdek, a criminal investigator for the state.
Tuesday’s hearing was held in Cheshire County Superior Court in Keene in preparation for Waite’s sentencing Nov. 25 on eight felony and two misdemeanor charges. But in light of Waite’s request for a new attorney his sentencing will be postponed, Kissinger said.
Waite faces decades in prison after a jury found him guilty in July of sexually assaulting an 11-year-old girl, who he knew, over seven years. He was also convicted of inappropriately touching and attempting to sexually assault another girl beginning when she was 14.
He was found guilty of three counts of aggravated felonious sexual assault, four counts of attempted aggravated felonious sexual assault, one count of possession of child pornography — for having a video of the younger girl engaging in sex acts — and two misdemeanor counts of sexual assault.
He was acquitted of 10 misdemeanor counts of sexual assault and one count of attempted aggravated felonious sexual assault.
In the weeks after the July trial, Assistant Cheshire County Attorney John M. Gasaway Jr., who is prosecuting Waite, dismissed 10 charges in a separate case brought against Waite. Waite had stood accused of possessing child pornography, although Hill contested that the people depicted in those sexually explicit images are under 18.
That objection was at the center of Tuesday’s contentious court hearing, which was cut short.
During that hearing, Hill argued the state must investigate further if Gasaway was going to be able to introduce, at Waite’s sentencing, any evidence of pornography possession.
Hill maintained that he could not conduct his own investigation and access the images without putting himself at a substantial risk of prosecution. And by not having the images or more information about them, Hill said he wouldn’t be able to sufficiently rebut the state’s allegations at sentencing, which would be unfair to Waite.
But, if the state reopened its investigation, Waite could risk facing new charges, Gasaway warned. He said the law allows for the defense to hire its own forensic expert to evaluate the images, but Hill refuted that position.
“It’s the state’s view that it’s a terrible idea. He faces liability on an image-by-image basis,” he said, noting that police have dozens of sexually explicit images which they seized from Waite.
Gasaway said he intends to show those images at sentencing to illustrate “how dangerous Mr. Waite is as a sex offender.”
Hill argued that police, including Faulkner, didn’t take steps to determine whether the images Waite was accused of possessing are logged in a database, which law enforcement uses to monitor manufacturers of adult pornography. He noted that each image is branded with a website that could provide further clues about their origins.
Federal law 18 U.S. Code 2257 outlines record-keeping requirements for producers of pornography, who must include the name of the person depicted and that person’s date of birth at the time the image was created.
If the 10 images described in indictments against Waite are in compliance with that statute, then they are not child porn, according to Hill.
Waite weighed in on the issue, as well, saying he had agreed to work with Hinsdale police at one time to show them where the images came from and that they’re legal.
“I don’t believe in child porn,” Waite said. “I don’t believe in it in any shape or form.