ASHLAND – Following a last-minute motion by the defense, Ashland County Common Pleas Judge Ron Forsthoefel has decided to proceed with the Shawn Grate trial as scheduled but to add a potential second phase.
In a video conference hearing held via Skype Friday, Forsthoefel said he plans to bifurcate the trial. Jurors will first hear arguments to determine whether Grate is guilty of the offenses and the sexual motivation specifications.
Then the jury will be asked to consider the sexually violent predator specifications in a second trial that would begin shortly after the first ends, only if the defendant is found guilty in the first trial.
After those two phases, the jury will deliberate and reach a verdict. Then, if the defendant is found guilty, there could be a break of a couple weeks before the third phase — the sentencing phase — would begin.
Friday’s hearing came after defense attorneys Robert and Rolf Whitney filed a motion Thursday requesting approval of up to $14,500 to hire a consultant from New Mexico to conduct an additional review of a previous brain MRI of Grate — and to conduct further testing and analysis.
When the motion was filed, the court was nine days into jury selection and was preparing to seat a jury and begin opening arguments.
Forsthoefel said he will authorize the additional expenditure for the consultant but would like to see a preliminary report from them by next Friday indicating whether the consultant believes additional testing is needed.
Defense attorneys said they had no problem with the Forsthoefel’s planned timeline for the case, but Ashland County Prosecutor Chris Tunnell expressed frustration.
“I’d like the state to have sufficient time to be able to go over whatever the results are … They’ve been at it for over a year, and then I’m going to get it dumped on me … To put it bluntly, judge, I’m just trying not to get screwed in the process,” he said.
The purpose of the MRI was to determine whether there are any mitigating factors that could result in a lesser sentence. Grate faces the death penalty in this case if he is convicted of aggravated murder and if the jury finds the crime meets certain death penalty specifications.
According to a memo submitted by the defense along with Thursday’s motion, Grate had the MRI done in late March. Then a neuropsychologist employed by the defense consulted with the medical examiner, Dr. Douglas Scharre, on March 27 and again on April 13.
The neuropsychologist, Dr. John Fabian, contacted the defense Tuesday evening “about the necessity of additional review over and above the traditional MRI results,” the Whitneys said in the memo.
“Counsel is unable to assess the defendant’s status without further testing and consultation with the aforementioned,” the Whitneys wrote in the memo.
In an April 17 letter to the defense attorneys, Fabian wrote that Scharre “does not have the requisite training and background experience” to interpret diffuse tensor imaging and functional MRI neuroimaging results in the case. Fabian is the one who originally recommended Scharre do the neuroimaging.
Fabian went on to write that Mindset Consulting Group of Albuquerque, New Mexico is “one of the only groups that offers interpretation, consultation and forensic testimony as to this type of neuroimaging, especially in capital cases.”
Fabian wrote that he spoke with a Mindset consultant who believed there is “a substantial chance” that the imaging could point to brain structural or functional impairments in the case.
Appearing at Friday’s video conference hearing, Fabian said he has evaluated 488 murder cases. Roughly half of those were death penalty cases.
“I’ve probably examined no more than 20 of those with neuroimaging, and probably less than 10 with this type of imaging. This is kind of more of your space-age, state-of-the-art, obviously more expensive type of neuroimaging,” he said.
Fabian said he has been involved in cases where this type of imaging had profound influences as well as others where there were no significant results.
Fabian is in the process of writing what he expects to be a 50- to 55-page report in the case.
The neuropsychologist said he has diagnosed Grate with persistent depressive disorder, unspecified bipolar and related disorders, generalized anxiety disorder, a language-based learning disorder, unspecified attention deficit hyperactivity disorder, cannabis use disorder and other unspecified personality disorders with anti-social schizotypal borderline traits.
Grate is accused of kidnapping and murdering Stacey Stanley (also known as Stacey Hicks) and Elizabeth Griffith and kidnapping a third woman. He faces 23 felony charges, including four counts of aggravated murder, four counts of kidnapping, two counts of gross abuse of a corpse, four counts of burglary, tampering with evidence, four counts of rape, aggravated robbery, unauthorized use of a vehicle and tampering with evidence.
Grate has reportedly told authorities he murdered two other women in Richland County and a fifth in Marion County, but only the alleged murders in Ashland County are part of this case.
