LOCKPORT – The prosecution won a round Monday in the Iver J. Phallen sex-torture case, as the judge ruled that the defense is not entitled to attack a search warrant obtained for Phallen’s home on the grounds that the judge who issued the warrant wasn’t given the whole story by police.
However, defense attorney James W. Grable Jr. will be allowed to continue trying to suppress the evidence on other grounds in a hearing that will continue Tuesday and Wednesday before Niagara County Judge Sara Sheldon.
Police seized a wide range of ropes, shackles and other purported instruments of torture from Phallen’s condominium on Carriage Lane in Lewiston after the 67-year-old retired businessman was arrested on charges of torturing two young women whom he brought there for sexual encounters. A third woman was added to the case later on.
Phallen has pleaded not guilty to two indictments totaling 209 counts, with the most serious charges carrying sentences of life in prison without parole.
Attorneys in the case are bound by a gag order not to make public comments, but during arguments, Grable seemed to acknowledge that his motion for a hearing on police honesty was an attempt to accelerate the disclosure of the prosecution’s full store of evidence.
“I’m hoping I can get this hearing so I can get as many of the facts as they have,” Grable told the judge.
Sheldon told Grable on Monday that at first, she was on the defense’s side on the issue of whether the validity of the warrant could be challenged in a hearing to explore the truth of what police told the judge who issued the warrant, Cambria Town Justice Amel S. Jowdy Jr.
“My knee-jerk reaction was to grant your request,” Sheldon said. “Then we started doing the research, and things changed.”
Sheldon ruled that even though one of the women changed her story about how she met Phallen and why she went to his home, none of that was relevant to the issuance of the warrant.
The 24-year-old woman at first told a story about planning to have ice cream with Phallen. Only later did she admit that she was a stripper who had accepted money from Phallen to have sex with him.
The woman “admitted she was there for purposes of prostitution,” Sheldon said.
She said there was no evidence to back up Grable’s surmise that an investigator told her she would not get in trouble for that.
Sheldon ruled that what created a legal situation of probable cause for issuing a search warrant was not the woman’s account of why she was there, but what happened “after she was handcuffed and the black sack placed over her head.”
Grable argued that the investigator should have told Jowdy that the woman changed her story, pointing out a dozen inconsistencies.
“Credibility is a trial issue,” Sheldon said, adding that the woman’s inconsistencies will “certainly be fodder for cross-examination.”