LOCKPORT – The judge in the case of Iver J. Phallen, the man accused of torturing and sexually assaulting three young women in his Lewiston condominium last year, said Monday she is setting aside three months for the trial, even though she wants the indictments against Phallen edited down.
Prosecutors first obtained a 122-count indictment covering crimes allegedly committed against two women, one on July 31 and the other on Sept. 25-26. Later, they added a second indictment with 87 counts involving a women allegedly assaulted on March 30-31.
Niagara County Judge Sara Sheldon scheduled the trial for Sept. 8 and told the attorneys, “I have set aside three months. That’s not facetious.”
In the course of nearly two hours of argument, which pertained only to the first indictment – although prosecutors are asking to have them combined for trial – defense attorney James W. Grable Jr. said the indictment was full of unnecessary duplication.
Sheldon said that before she spent three days reading the grand jury minutes, she had hoped that was true, “because no way did I want a jury to grapple with 122 counts. But unfortunately for the defense, I did find testimony to support each and every allegation. That being said, I would like this pared down.”
Deputy District Attorney Holly E. Sloma said, “Believe it or not, we whittled this down.”
She said the multiple instances of the same charge were caused by “distinct breaks in this period of over 12 hours ... These charges are a reflection, quite unfortunately for the victims, of more than 12 hours of torture.”
Grable said he could easily reduce the 122 counts in the first indictment to 12, simply by dropping lesser charges pertaining to the identical act and using only the most serious in each instance. His changes still would leave Phallen facing a maximum of life in prison if convicted.
He especially scorned eight counts of second-degree kidnapping involving the same woman.
“If there’s a break-in kidnapping, does that mean the restraint ended, the complainants were free to go, and then there was another kidnapping?” Grable asked.
Sloma seemed to concede the point, but insisted, “Other than the kidnapping seconds, there is no multiplicity in this indictment.”
Sloma said, pertaining to a single victim, “We have three separate hangings, for example.” There were also two separate whippings and two separate incidents of being assaulted with a piece of wood.
Sheldon directed the attorneys to work with her law clerk in reducing the size of the indictment.
Co-defense counsel Mollie C. McGorry argued that she and Grable were disadvantaged by the prosecution’s refusal to turn over the grand jury transcript before the eve of trial. She said it’s apparent from material that has been turned over that the women must have made some contradictory statements. She said one of women “fabricated an entire tale about how she got to know Mr. Phallen.” Another, McGorry said, told medical personnel a different story about how she hurt her shoulder than she told police.
Also, it appeared, there was a DNA testing report from the Niagara County Sheriff’s Office with the names of four other men besides Phallen, leading her and Grable to believe there were multiple suspects. Sloma said there were not, that the other men were tested in regard to other cases.
“All we have to rely on is guesswork,” McGorry said.
Sloma said, “It’s not our job to explain these materials to them. It’s our job to provide these materials.”
Grable argued at length that Sheldon should set bail for Phallen, contending that he isn’t a flight risk and at the same time saying that his father in Syracuse is ill and his sister in Atlanta just lost a child.
Assistant District Attorney Peter M. Wydysh said of Phallen, “He has every reason in the world to flee and the resources to make it happen.”
Sheldon said Phallen would continue to be jailed without bail. She said she is allowed to consider the weight of the evidence against him.
“The strength of the people’s case, quite frankly, Mr. Grable, is overwhelming, having read the grand jury minutes,” Sheldon said.
She said she would likely order them delivered to the defense 30 to 45 days before the trial.
Grable said he intends to use a defense of consent. He said the women were paid “thousands of dollars” to go to Phallen’s condo.
“They agreed ahead of time to engage in bondage, sadomasochism and prostitution with him,” Grable said.
Wydysh said, “”They did not consent to any severe BDSM (bondage, discipline and sadomasochism) activities ... They were terrorized. They were threatened by the defendant to a point that they didn’t know if they would get out of there alive.”