BY MAIRE O’NEILL
After a preliminary and several hours’ pre-trial detention hearing on Wednesday, Judge of the First Judicial District, Jason Lidyard, relegated Michael Novak to pre-trial detention at Los Alamos Pretrial Detention Center. Judge Lidyard found a likely reason to accuse Novak of four cases of criminal sexual penetration of a child under the age of 13 and one case of criminal sexual contact with a minor.
The criminal complaint against Novak, 61, filed in the District Court by Assistant District Attorney Heather Smallwood had 12 charges of criminal sexual penetration of a child under 13, 12 charges of criminal sexual contact with a child under 13, two charges of battery and a charge to intimidate a witness. The alleged victim of the case is nine years old.
Judge Lidyard, upon announcing his decision, said he had found a likely reason to support two criminal sexual penetration cases against a child under 13 – vagina. He said the alleged victim’s testimony was that her vagina was repeatedly sexually penetrated over a period of two days, night and morning. He said the child testified that they had nightmares and woke up on the second day and the same thing happened, which enabled the break in contact in support of two separate charges.
Judge Lidyard used the same logic to support two other charges of criminal sexual penetration of a child under the age of 13. In addition, based on the testimony of the nurse who conducted the SANE investigation at St. Vincent’s Hospital that the child reported the mouth to vagina contact, Judge Lidyard added a count of criminal sexual contact of a child under the age of 13.
Two battery charges were dropped because the child failed to testify about the battery during Wednesday’s hearing. Judge Lidyard dismissed intimidation of a witness charge because the allegation that Novak told the child not to speak to his mother does not constitute a witness intimidation for whom the threat is required in connection with any judicial, legislative or administrative process.
When Smallwood asked Judge Lidyard to grant the request for pre-trial detention, he said that the five counts were very serious, that strong statements had been made during the hearing, and that the weight of the evidence was sufficient to convict Novak on the charges. She also cited his previous crime story which pointed to inappropriate behavior towards a child. Finally, she said Novak was a danger to the victim and the community, and no release conditions would protect the victim and the community from them.
Judge Lidyard asked Smallwood why the state did not file the request for pre-trial detention until six days after Novak was released after his first arrest. Smallwood said she didn’t know Novak’s story until later. Judge Lidyard asked if there was no reasonable reason for the no-history motion based on the initial charge, and Smallwood replied that the original criminal information only included two or three counts.
Novak’s defense lawyers Damian Horne and Bill Snowden argued that Novak had been on probation for over a month and had no compliance issues. Horne said Novak’s psychologist found that there are two types of dangerous sexual predators – who do not infer his client’s guilt – that are fixated and regressive. He said Novak didn’t fit into any of these categories. He insisted that Novak posed no threat to the alleged victim or the community and asked that he be allowed to remain on probation. He said that if the testimony turned out to be smoke and mirrors or misunderstanding, the court would put a person innocent at that point at risk.
Judge Lidyard said the nature of the circumstances was that a child was entrusted to Novak’s care when he was nine years old and that during that time he repeatedly and uninterruptedly committed sexual acts against the child for two days. He said the fact that the acts took place on two separate days, separated by an evening and then resumed, made them a violent crime against “the weakest of our society”.
The evidence in the case is strong, Judge Lidyard said that there was an immediate disclosure by the child that allowed the sexual assault nurse to investigate, which revealed a number of injuries to the child’s vagina – injuries that point to one Trauma and did not occur naturally. The injuries were acute and hours old and occurred during the time Novak had sole access to the child. Judge Lidyard said he found it convincing that the child was ready to come to court to testify.
Regarding Novak’s criminal history, Judge Lidyard noted that his previous offenses in the 1990s are significant in that they point to previous sexual assault on charges that have been dismissed by appeal. Despite the substantial length of time, Judge Lidyard noted that there is strong evidence of Novak’s criminal history and characteristics of sexual contact with other criminals.
Judge Lidyard alleged that by seeking sexual satisfaction with a child, Novak demonstrated his inability to comply with legal or moral orders. Finally, he ordered Novak to be taken into custody no later than Wednesday, February 24 at 5:00 p.m.