Former prison guard's sex abuse trial pushed back; judge to decide on testimony of deceased inmate

Nov. 21--SCRANTON -- Including the prior testimony of a deceased victim at the upcoming trial of former Lackawanna County Prison guard charged with sexual abuse of inmates would prevent a fair proceeding, the man's attorney argued in court today.

That testimony would cause "extreme prejudice" against Mark A. Johnson, 54, 2213, Golden Ave., Scranton, because his lawyer has no way to cross-examine the witness who gave that testimony, attorney Robert Levant said.

Johnson is among seven people arrested on Feb. 14 based on a statewide grand jury investigation that began after Scranton attorney Matthew Comerford filed a federal lawsuit alleging multiple guards, including Johnson, abused female inmates. Johnson is scheduled for trial on June 17, postponed from Jan. 7 due to scheduling conflicts.

Preliminary hearing testimony from one of Johnson's alleged victims, Tammy Fox, is one of several issues argued during a pretrial hearing. At Johnson's preliminary hearing, Fox testified he made lewd comments to her while she was incarcerated between 2003 and 2015, and that he once pressed his genitals against her in 2015.

Fox died after an August car crash. Her boyfriend, John Jenkins, is awaiting trial on criminal homicide; police said he cut her brake lines.

The Times-Tribune does not normally name victims of sexual abuse, but Fox's involvement in the criminal case and civil lawsuits against the jail, coupled with her death, made identifying her inevitable.

At today's hearing, Deputy Attorney General Rebecca Elo said Fox's statements have been consistent from the time she first made them through her testimony at a March preliminary hearing and does not believe that including such testimony would have any prejudice.

"Her statements have remained the same since day one," Elo said.

Elo also argued that state law allows prosecutors to present evidence of crimes against a deceased victim through prior testimony as long as the defendant's attorney had a chance to cross-examine the victim.

Levant did cross-examine Fox at Johnson's preliminary hearing, but the nature of a preliminary hearing restricted what he was allowed to question, he said. At trial, Levant planned to probe further into Fox's motivations for bringing her allegations forward. At a preliminary hearing, her credibility is not at issue, so he couldn't do that.

Johnson is accused of abusing Fox and another inmate, so the possible exclusion of her prior testimony could have significant ramifications for the case.

The other former inmate testified Johnson repeatedly forced her to perform oral sex on him while she was jailed between 2006 and 2010 and that he once smoked crack cocaine as she performed the sex act.

Also argued today is the issue of whether prosecutors can present evidence of Johnson's prior, uncharged misdeeds to bolster the credibility of allegations on which he is charged. Elo said that the testimony of two additional women will show jurors that Johnson had a pattern of conduct at the jail -- abusing the authority of his position for his own sexual gratification. Judge Julia Munley has to decide if the conduct is similar enough and if the probative value of testimony outweighs the potential prejudice on the defendant.

Johnson is charged with two counts each of involuntary deviate sexual intercourse and institutional sexual assault and one count each of harassment and indecent assault.

Contact the writer: jkohut@timesshamrock.com, 570-348-9144; @jkohutTT on Twitter

___

(c)2018 The Times-Tribune (Scranton, Pa.)

Visit The Times-Tribune (Scranton, Pa.) at thetimes-tribune.com

Distributed by Tribune Content Agency, LLC.