A lawyer for an actor accused of child rape has asked the court to throw out a major piece of evidence against him.
Everett attorney Mark Mestel has asked for a Snohomish County Superior Court hearing to throw out a taped telephone conversation between the alleged victim and former "Party of Five" actor Scott Bairstow.
Mestel also is asking for a court to determine that an affidavit earlier this year supporting a court order for the recording is insufficient and contains "misstatements or omissions of material facts."
Lisa Paul, lead deputy prosecutor in the office’s special assault unit, said the recording is an important piece of evidence, and she believes permission for the one-party consent was valid.
"Obviously, we wouldn’t charge something that we wouldn’t think would hold up in court," said Paul, who has not seen Mestel’s written motion. "We can’t go off half-cocked and tape somebody’s conversation. We go through steps, take it to a judge, and the judge decides to grant it or not."
Bairstow, 33, of Los Angeles was charged with second-degree rape of a child for allegedly having sex with a 12-year-old girl four years ago in Mukilteo. The former Mukilteo resident allegedly carried on a relationship with the girl in other locations until 2001, according to court papers.
The girl told investigators she had sex with Bairstow when he lived in Mukilteo in 1998 and three more times outside the state. The last time was in 2001, papers say.
Besides the girl’s testimony, the most damaging piece of evidence is the recording that Mukilteo police made in May of the telephone conversation between the girl and Bairstow.
During the call, Bairstow told the girl not to tell about something because "I would be thrown in jail for 10 years."
Excerpts of the transcript contained in court documents don’t say what the girl should not tell.
In court papers filed Wednesday, Mestel argued that the affidavit used to support the request for the recording didn’t establish probable cause, a threshold amount of evidence police must swear to in an affidavit in order to get permission.
Mestel also said police did not show the recording was necessary to investigate the case.
He argues that police could have had many people listening in to the telephone conversation on extensions, or a stenographer could have taken down every word. He also alleged that the alleged victim misled investigators when she said she told a friend about the rape and wrote about it in her journal.
No date was set immediately for argument.
Bairstow, who is Canadian, has had an extensive career with roles in nine feature films including "Tuck Everlasting." He has also has appeared on television in such shows as "Touched by an Angel."
Reporter Jim Haley: 425-339-3447 or haley@heraldnet.com.
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