- Josh Scheuerman'
As Gordian knots go, the one defense attorney Ed Wall presented to the Utah Court of Appeals on March 23 required a particularly sharp sword.
Wall explained to the court he could not zealously represent his client Scott Gollaher in a prosecution in 3rd District Court brought by the Utah Attorney General's Office, because to do so would mean the attorney himself would be liable for prosecution. Gollaher is currently serving 15 years to life at the Utah State Prison on multiple aggravated child sex-abuse charges from a case in Morgan County, a story told in an April 2015 City Weekly cover story titled, "No Apologies." In an ongoing Salt Lake County case, Gollaher is being prosecuted for possession of child pornography, including images of himself orally abusing an unidentifiable 11-year-old girl, with only her private parts and lower abdomen visible.
In order to defend Gollaher, Wall needs to put the alleged victim on the stand so she can confirm or deny the images are of her. Gollaher believes her answer will be negatory, according to court motions. But for a defense attorney to show child pornography to a minor, indeed to handle it at all, is a state and federal crime. However, to not show the now-teenager the images would violate Gollaher's constitutional rights to a defense.
"Counsel cannot properly ignore Mr. Gollaher's right to call the child-victim to testify," Wall wrote in a motion for the appeals court. "Nor can counsel lawfully obtain the child-victim's testimony." Wall declined to comment after the hearing.
In a friend-of-the-court briefing filed by Utah Assistant U.S. Attorney Jeannette F. Swent, the federal prosecutor dismissed Wall's concerns as "baseless." She wrote it is "implausible to suppose that defense counsel would be prosecuted for such conduct, under the supervision of a state court judge."
But for Gollaher, the girl's testimony is crucial to his defense. Wall told the appeals court's three judges that if the victim indicates she isn't the pictures' unwilling subject, "the case [will] come to a lock." As it stands, the case ground to a halt during the preliminary hearing in 2013, marked, in part, by the federal government's refusal to provide case notes, videos and other material from the files of three FBI agents involved in the Gollaher investigation. The feds cited Touhy regulations, which allows them to decide what documents to release publicly.
Wall wanted the court to dismiss the case because he believes no defense attorney can truly represent Gollaher, given the legal conundrum his counsel faces. The family of the alleged victim—who moved to California two years ago in an attempt to help the girl heal and escape the trauma—just wants the case to end. In a phone interview, mother Marie Maxfield says her daughter's greatest fear is that Gollaher might one day walk free and turn up on their doorstep. Her daughter has fought "a real battle with depression and thoughts of suicide from then until now," she says.
The conflict between Gollaher's legal rights and his alleged victim's mental and emotional health does not surprise Douglas Goldsmith. He's the executive director of The Children's Center, a Salt Lake City-based nonprofit that provides comprehensive mental health care to young children and their families. In a June 2016 interview several months after Gollaher's sentencing in the Morgan County case, he said, "There's a huge gap, unfortunately, between the legal world and psychology, and a lot of times what we wish would happen as mental-health therapists may not be allowed because of the laws or legal procedures."
Goldsmith found the possibility of the minor-victim having to go to court and be confronted by such images "disgusting." Such a possibility was an example of how the legal system, "doesn't fully understand trauma, is not trauma-informed and does not look at what's best for the child," he says. For Maxfield's daughter, such a court appearance, if it were to occur, would unquestionably be a case of her being "revictimized in court," he said.
The child repeatedly cut herself. She has scarring down the inside of both legs—from her thighs to her ankles—and on her arms. She chooses to wear long shirts and pants in the California heat, but sometimes wears shorts indoors with her immediate family. "It breaks your heart to see physically what this has done to her," Maxfield says. "She will not be able to get away from that." State health insurance does not cover plastic surgery for someone her daughter's age.
FBI Agent Jeff Ross showed Maxfield the photos the FBI had found at Gollaher's apartment involving her daughter and Gollaher. "It was hard enough for me having to look at those photos. They were very graphic. I can't imagine her having to have those presented to her in any way, ever," she says.
Maxfield points out she and her daughter are critical of the FBI and the Utah Attorney General's Office for pressuring her daughter. Their insistence—in multiple conversations in person and on the phone—that she be prepared to testify has only compounded Gollaher's alleged abuse, making the now 16-year-old "feel like she's not normal," her mother says. The FBI and the AG's Office declined City Weekly's request for comment.
For a child who used to be the center of attention among her friends in Utah, she now "doesn't trust anybody, adults or kids," her mother says. "I can't believe all the areas this has affected her, kept her from being a normal kid." She's now failing nearly all of her classes. "It's very hard to push her to continue with schoolwork when she is damaged emotionally and mentally."
In late March, at the suggestion of the LDS bishop in their new ward, her daughter began seeing a therapist. However, such is the extensive, years-long history of abuse she's suffered—not only allegedly at Gollaher's hands, but also by another a man currently in prison—both therapist and client face a long road ahead.
The Children's Center's Goldsmith said in June 2016 that minor-victims testifying in court have historically been treated as providing data; meanwhile, they are being retraumatized. "It's not just them talking about it, but their body relieving the stress of that day." Goldsmith said the issues raised by Gollaher's Salt Lake County case, and others like it, boil down to the question: "How can we provide protection and not retraumatize victims in court?"
Questions to Wall from the appeals court's judges at the hearing suggested they were leaning toward returning the case to 3rd District Court. Without the issues Wall was raising having actually happened in a district courtroom, they had nothing to address. Wall was "asking us to review decisions that have never been made," appeals Judge Jill M. Pohlman wrote.
If the case is returned to district court, Wall told the judges, "I will move to withdraw; I will not proceed with my client's case. I can't imagine any defense attorney going forward with it." If that's the case, that leaves one avenue open to Gollaher—namely to act as his own counsel. In the Morgan County case, Gollaher represented himself, which meant he cross-examined the two teenage girls he was subsequently convicted of abusing.
Maxfield says she doesn't know if her daughter's fear of "having to be in the same room as the man who violated her in so many ways—emotionally, physically—will ever go away until the trial is done." She told the girl of the impending appeals court hearing. Her daughter already knew the images existed, although Maxfield doesn't know how she found out. When she told her that Gollaher wanted to put her on the stand and show her the pictures, Maxfield says she clenched up and shook. Her daughter told her, "Why do people have to look at the photos of my private parts? I don't want to have to see them. Nobody should have to see them. Haven't they looked at them enough?"