A circuit judge will determine on Monday whether attorneys can question witnesses regarding the use of exam gowns as a local doctor’s retrial draws nearer.
Robert Burl Rook was initially accused in 2016 of rape and sexual assault. The charges were later lessoned by a special prosecutor to second- and third-degree sexual assault.
Last year, a Faulkner County jury found the long-time Conway doctor not guilty of eight of the charges against him. However, the jury was hung regarding the remaining sexual assault allegations.
Special Prosecuting Attorney Jason Barrett is pursuing the remaining charges — five counts of second-degree sexual assault and three counts of third-degree sexual assault — against the now-64-year-old doctor.
During a brief hearing before Circuit Judge Charles “Ed” Clawson Jr. on Friday, attorneys on both sides of the matter discussed two motions in limine requested by state prosecutors.
Clawson ruled in favor of one of the motions but said he needed more time to consider the arguments regarding possible testimony on the presence of exam gowns in Rook’s patients’ exam rooms.
While testimony regarding the gowns was not allowed in the first trial, Barrett said he believes the issue should be brought up during Rook’s retrial because Patrick Benca, who represents Rook, said during his closing arguments last year that the lack of testimony on the matter helped show his client was innocent.
“At the earlier trial, this Court made a determination that certain evidence regarding the presence of exam gowns was inadmissible evidence in the case,” Barrett’s motion for reconsideration on the motion in limine reads in part. “The Court reasoned that here was not a sufficient temporal relationship between the gowns and the victims, making the evidence not relevant under the rules of evidence. However, in closing argument, the defense counsel argued that a lack of testimony about the presence of gowns was evidence of the defendant’s innocence.”
During the brief hearing Friday, Benca argued that the alleged victims in the case “were able to say it was the person before them” who left the gowns in the rooms.
Regarding the testimony of the state’s witnesses, Barrett said “these are my witnesses and I’ve never heard that.” Should the court opt not to approve his request, Barrett has also asked “to preclude the defense from using the lack of such evidence in any argument to the jury.”
Clawson will issue a ruling in the matter on Monday.
“I want to consider that a little more,” he said. “I will have a decision by Monday afternoon.”
During the Friday afternoon hearing, Clawson ruled that testimony of the State Medical Board’s decisions to only allow Rook to meet with patients when accompanied by a chaperone and later recalling the limitation and allowing him to return to unsupervised practice would not be allowed as evidence in the case.
Barrett had requested this information not be brought up because it “is not relevant in the trial of this case.”
The case is currently set to go before a Faulkner County jury in August.
Prior to the trial, parties will meet before Judge Clawson at 1 p.m. July 9 to handle any other motions filed in the case. The three-day trial is set to begin Aug. 14.