The state will be able to use a secretly recorded telephone conversation in the child-rape trial of a Hollywood actor who once lived in Mukilteo, a judge ruled Friday.
Everett lawyer Mark Mestel wanted the judge to suppress the recording as evidence in the trial of Scott Bairstow, who appeared in the television series "Party of Five" and the movie "Tuck Everlasting."
Superior Court Judge Thomas Wynne said he was satisfied with a Mukilteo police affidavit used to get judicial permission to record the conversation between Bairstow and the girl, who allegedly had sex with the actor four years ago when he lived in Snohomish County. She was 12 years old at the time.
Mestel asked the court to determine that the affidavit supporting the court order for the recording was insufficient and contained "misstatements or omissions of material fact."
On the contrary, Wynne said, there was neither deliberate falsehood nor a reckless disregard for the truth in the officer’s statement.
Wynne also found that the recording was a legitimate police tool in this case and that it would help a jury not only have the exact wording of the conversation but also would put it in context.
Deputy prosecutor Janice Albert argued that the police affidavit was necessary, and described the inadequacy of other investigative techniques.
"The defendant’s claim that the affidavit was inadequate ignores detective Lance Smith’s detailed discussion of the particularized needs of this case," Albert told the judge.
Bairstow, 33, of Los Angeles is charged with second-degree rape of a child for allegedly having sex with the girl. He allegedly carried on a relationship with her 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.
Besides the girl’s testimony, the most damaging evidence is the recording that Mukilteo police made in May of a telephone conversation between her and Bairstow. During the call, Bairstow told her not to tell about something because "I would be thrown in jail for 10 years."
Portions of the transcript contained in court charging papers don’t say what the girl isn’t supposed to tell.
Mestel said he doesn’t know now if Wynne’s decision will be appealed.
Reporter Jim Haley: 425-339-3447 or haley@heraldnet.com.
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