Ex-teacher’s conviction reversed

The CNMI Supreme Court has ruled that a former supervisor of Hopwood Junior High School’s Special Education Program who was convicted for hitting an autistic student did not receive a fair trial.

The trial court abused its discretion when it denied Franklin R. Perez’s request for a government-funded expert witness, said the high tribunal in its opinion issued Thursday. The High Court ordered a new trial for Perez.

“The trial court’s denial of his request was an abuse of discretion and it interfered with Perez’s ability to receive a fair trial,” said the High Court’s decision issued by Chief Justice Miguel S. Demapan and associate justices Alexandro C. Castro and John A. Manglona.

The justices pointed out that, although the defendant was also convicted of assault and battery, they are convinced that the trial was unfair and that he is entitled to a new one.

The justices said that, due to the legal issues involved with educating a special needs child, and due to the trial court’s blurring the distinction between the laws of the Commonwealth and the regulations of the Public School System, Perez’s request for an expert witness was just.

Court records show that Perez is a veteran special education teacher with 30 years of experience and holds degrees in the field of Special Education.

PSS hired Perez and, beginning in 2000, tasked him with the responsibility for teaching an autistic 13-year-old boy referred to as RJ.

RJ would occasionally slap or hit others, and while under Perez’s care, he became increasingly dangerous to himself and others.

In September and October of 2001, Perez, apparently unilaterally, implemented a behavioral modification program designed to modify RJ’s recent behavior of pinching and hitting.

It is unclear whether Perez implemented a complete Lovaas system, or just a Lovaas “style” behavior modification system.

The Lovaas method is a methodology for the education of children with autism developed by Dr. O. Ivar Lovaas at UCLA. It “involves breaking down activities into discrete tasks and rewarding a child’s accomplishments.”

In this case the only part of the Lovaas method that garners mention is “mirroring.” Simply stated, ‘mirroring” is a behavioral modification process that requires the instructor to mirror the bad behavior of the subject in an effort to extinguish that bad behavior.

In this case, RJ would punch, slap and hit, so mirroring involved Perez hitting RJ when RJ hit.

Perez admitted striking RJ four times, but only in the context of behavioral intervention.

Perez claimed that hitting RJ was consistent with established educational techniques and that the purpose of hitting the boy was to modify aggressive behavior as dictated by the Lovaas method.

In 2002, the Attorney General’s Office filed a three-count information against Perez alleging child abuse, assault and battery, and disturbing the peace.

All counts in the information stemmed from Perez’s striking of RJ. Perez filed a request for government-funded expert.

Without a hearing on the matter, the trial court denied Perez’s application.

The trial was held in March 2003. Superior Court associate judge David A. Wiseman found that Perez committed the crimes of child abuse and assault and battery.

Wiseman, however, adjudged the then 52-year-old Perez not guilty of disturbing the peace.

Wiseman entered a judgment of conviction on March 26, 2003. But on July 30, 2003, the judge entered an order vacating the conviction.

However, Wiseman maintained his findings of the guilt of Perez with respect to the crimes of child abuse and assault and battery.

Perez, through counsel Colin Thompson, appealed.

In reversing Wiseman’s judgment, the justices said because the trial court denied Perez’s request for an expert witness, his trial was fundamentally flawed.

“Without the expert testimony, the standards of conduct required of Perez became blurred to the point that it is unclear from the record whether the trial court found Perez guilty of child abuse because he was a teacher, which is improper, or because there was enough evidence to convict him of child abuse,” the justices said.

They cited that PSS has a regulation in place that forbids all corporal punishment. Accordingly, the justices said, no matter how reasonable, corporal punishment is not allowed in a Commonwealth public school.

Presumably, they noted, this includes the Lovaas “mirroring” behavioral intervention.

The justices said that, depending on the legitimacy of the Lovaas system, a parent or caregiver might very well use the Lovaas method to a great degree of success at home, but such actions could not be done in a school setting because PSS doesn’t allow corporal punishment.

That does not mean, however, using the Lovaas system is child abuse, the justices stressed.

To be convicted of child abuse, they said, the government must establish that the defendant’s conduct was “beyond the scope of reasonable corporal punishment.”

For a conviction, the trial court cannot simply assume there was corporal punishment and skip ahead to a flawed reasonableness determination, they said.

“At trial, nobody addressed whether or not the Lovaas Method of mirroring is corporal punishment and whether or not it is reasonable outside the PSS setting,” the justices said.