DOVER, Del. – A former pediatrician imprisoned for abusing his female companion's daughter, including "waterboarding" the girl by holding her head under a faucet, didn't get a fair trial, his lawyer argued on appeal Wednesday to a Delaware Supreme Court panel.
Melvin Morse, 61, is challenging his February 2014 conviction and three-year prison sentence on several grounds, defense attorney Joseph Hurley told the three-justice panel. Hurley said issues included a judge's decision to allow jurors — in their deliberations — to review videotapes of unsworn statements the victim and her younger sister gave investigators.
Hurley argued that a prosecutor invited jurors in her closing trial arguments to ask for permission to review the tapes if they thought those would help their deliberations. But jurors weren't given in that same opportunity the defense evidence challenging those statements, Morse's attorney said.
The Supreme Court previously has held that such recordings should not be given to jurors unless they make such a request on their own, or unless attorneys agree to that ahead of time.
"I would say it was not a best practice," deputy attorney general Kathryn Garrison conceded when Chief Justice Leo Strine Jr. pressed her about the prosecutor's invitation to the jury to review the videotapes.
Morse was convicted of felony reckless endangerment for a bathtub waterboarding, along with five misdemeanors. Jurors reduced a second felony waterboarding charge to a misdemeanor and acquitted Morse on a felony suffocation charge.
In addition to improperly allowing the jury to review the videotapes, the judge erred in allowing jurors to consider evidence of several other "bad acts" for which Morse was not charged, Hurley argued. The defense claims the cumulative evidence inflamed jurors and unfairly prejudiced Morse.
"It was just layer after layer after layer.... It wasn't necessary," Hurley said.
Among the contested evidence is a photo of the tearful girl sticking her fingers in both her nostrils. Morse testified that he took the photograph to show the girl's mother an act of defiance by the girl after he had slapped the child for sticking one of her fingers in her nose.
Garrison argued that prosecutors used the other "bad acts" to show Morse's motivation and intent in disciplining the child, and to counter his suggestion that he was simply "washing her hair" during the alleged waterboarding.
Garrison also noted that some of the acts were directly tied to the charges against Morse, including an incident in which the girl was waterboarded in the bathtub as punishment for vomiting into a cat's litter box after being forced to drink milk.
Morse, whose medical license was suspended after his arrest, has denied police claims that he may have used waterboarding to experiment on the girl.
Morse has written several books and articles on paranormal science and near-death experiences involving children. He has appeared on shows such as "Larry King Live" and the "The Oprah Winfrey Show" to discuss his research, which also has been featured on an episode of "Unsolved Mysteries" and in an article in "Rolling Stone" magazine.
Morse was charged with endangerment and assault after the girl ran away in July 2012 and told authorities of waterboarding and other abuse.