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Molest case may be halted
May 24, 2008, 12:00 AM By Michelle Durand

The search warrant allowing San Mateo police to comb through more than 800 confidential patient files to find former patients of prominent child psychiatrist Dr. William Hamilton Ayres who were molested is either "a massive invasion of privacy” or a last-ditch effort to stop "a pedophile who is a serial molester.”

Judge Norman Gatzert will consider the validity of the warrant, and the admissibility of the alleged victims it unearthed, in two months. Gatzert heard more than three hours of argument — including the divergent characterizations — Friday morning but delayed a final decision on a number of related issues until attorneys can submit briefs on an April 2008 U.S. Supreme Court ruling on search and seizure.

As a result, Ayres’ June 23 jury trial date was vacated and those involved in the case are waiting to see if the warrant will stand. If the warrant does not survive the scrutiny, Ayres will likely go free because all victims alleged in the criminal case came forward as a direct result of the patient files.

San Mateo police and the California Medical Board sought other ways of tracking down former juvenile patients but were unsuccessful, according to witnesses called by prosecutor Melissa McKowan to prove the compelling need of finding victims overrode the confidentiality rights of patients.

"We thought the community needed to be protected,” McKowan said.

San Mateo Deputy Police Chief Mike Callagy learned from the medical board Ayres refused to voluntarily surrender his license after settling a civil suit in 2005 over molestation claims. He also located Ayres’ office and believed "he was still practicing and still molesting children.”

Despite pleas for alleged victims who fell after the 1988 legal deadline for prosecution, Callagy said the Ayres case was stalled until the March 2006 search of his storage locker.

"In 2005, I was at an absolute dead end in this investigation,” Callagy said. "I firmly believed there were individuals out there within the statute and this was the only way.”

As a result of publicity after the civil settlement, 10 alleged victims ultimately came forward but all were beyond the statute of limitations for both criminal prosecution and medical license suspension, McKowan said.

Records seized by the warrant returned three alleged victims within the statute of limitations which were immediately filed. The charges drew national publicity and approximately 27 to 29 other victims, four of which also fell within the statute, McKowan said.

Ayres is charged with 20 felonies stemming from those seven alleged victims but the prosecution could use the dozen more outside the statute of limitations in court to show a propensity.

Ayres, a nationally recognized psychiatrist, testified during his civil trial that he conducted medical tests of the alleged victims as part of his practice.

Even if Ayres had molested male patients 20 years ago, as alleged, the police had no proof of incidents since and therefore no legal probably cause for the search warrant, defense attorney Doran Weinberg argued.

No number of prosecution witnesses explaining the warrant’s need now can make up for an anemic document, he said.

"On its face this warrant is invalid. It cannot be rescued by after-the-fact rationalizations,” Weinberg said.

Search warrants are mean to have a limited scope that outlines the potential evidence investigators expect to recover. Patients names are not evidence, Weinberg argued although Gatzert disagreed.

Friday’s hearing was Weinberg’s second attempt at getting the warrant suppressed. In December, now-retired Judge John Runde, who signed the warrant in 2006, upheld it but an appellate court overruled the decision because the defense did not receive a full hearing. The matter bounced back to San Mateo County for reconsideration but in March Runde recused himself by noting that "antipathy to counsel” means he "cannot be impartial to both sides.”

Gatzert took the warrant issues under submission until July 24 when attorneys argue whether Ayres’ Fourth Amendment right was violated if the search warrant violated state law.

Gatzert expects to render a decision within the following week.

The case is also set for Aug. 19 to set a new jury trial date. Meanwhile, Ayres is free from custody on $750,000 cash bail.   

 

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 102. 


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