Mental health exam could spur settlement talks in Dietrich assault lawsuit

The teen attacked by his Dietrich High School football teammates in a locker room and the school district say they’re willing to get together to talk about a possible settlement in a civil lawsuit filed by the family, but no discussions have taken place.

That’s because the lawyers representing the Dietrich School District and several employees named in the federal suit want to have the 19-year-old undergo a mental health evaluation.

The defense wants to know whether the events of Oct. 22, 2015 — when student Tanner R. Ward shoved the elbow-end of a plastic coat hanger into the buttocks of the victim and John R.K. Howard kicked at the hanger — caused ongoing medical and mental health problems for the victim.

Lawyers for the victim, who is mentally disabled, say he now suffers from a severe and permanent stress disorder that will require lifelong counseling and treatment. The victim and his family are seeking $10 million.

Besides the school district, the suit names Dietrich football coaches Mike Torgerson, Rick Astle, Bret Peterson and Wayne Dill, along with outgoing Superintendent Ben Hardcastle and school board members.

Lawyers for the district and the others have tried since October to schedule the mental health examination. Lee Schlender, the victim’s lawyer, suggested that it could interfere with the victim’s continued mental health care. But last month, Chief U.S. District Judge B. Lynn Winmill ordered the examination to happen — it’s now scheduled for Wednesday — and told the Idaho Department of Health and Welfare to turn over records on the victim and his adoptive parents, Tim and Shelly McDaniel.

The defense had sought the records.

Lawsuit offers context on criminal trial

In late February, Howard was sentenced in 5th District Court to three years of probation and 300 hours of community service for felony injury to a child. He entered an Alford plea to the charge in December — not admitting guilt but acknowledging that prosecutors could have won a conviction. It’s treated like a guilty plea in Idaho.

The sentence drew wide criticism from people who thought Judge Randy Stoker was too lenient and blatantly ignored racial elements of the case — the victim is black. The Idaho Judicial Council is investigating the judge after complaints were filed.

Howard’s fate was widely reported, but those of two other boys charged over the incident were not. Ward and a third teammate who has not been publicly identified had their cases resolved in juvenile court, where records are sealed. Court records filed by the victim’s civil attorneys, however, say both boys were also given probation.

Howard, 19, and Ward, 17, were originally charged with felony counts of forcible sexual penetration with a foreign object. The Idaho Attorney General’s Office, which prosecuted the case at the request of Lincoln County officials, lowered the charges after deciding the incident didn’t meet Idaho’s legal definition of a sex crime.

The criminal case was complicated by a conversation with the victim recorded by coaches Torgerson and Astle last May 19, six days after the coaches were named as defendants in the civil lawsuit. In it, the victim recanted his accusations and blamed his parents, who he said fed him lies in order to win a big payout, according to the Twin Falls Times-News, which obtained a copy of the recording.

“The town of Dietrich should not have to suffer for this,” the victim said on the recording. “It was never my intentions. It was just all them, all my parents ... I was fed lies and I said it and I signed it because I was pressured.”

The victim later recanted that recording, saying he lied to his coaches and teammates because he wanted his friends back. And the conversation apparently happened just a few days after the victim had a fight with his parents over chores and left home to stay with a high school friend.

A lack of supervision?

There are still questions about whether Torgerson, Dietrich’s head football coach, knew about the locker room assault, which happened after practice that day.

A coaching evaluation form from before the incident, filled out by the district’s athletic director, states that Torgerson “supervises (the) practice area and locker room when athletes are present.”

He told Hardcastle, the superintendent, that he and his fellow coaches were “hesitant” to be in the locker room the whole time before and after practices because they were “worried about being accused of impropriety” by seeing the players unclothed, Hardcastle said during a deposition for the civil suit.

Several football players told Hardcastle that Ward had pulled up the victim’s underwear and ripped it before practice, exposing his rear. The victim still wore the same pair after practice, and a mother of one of the other players in the room told the superintendent Torgerson apparently didn’t even notice.

Handwritten notes taken by Hardcastle and released by the Idaho Attorney General’s Office said Torgerson entered the locker room and confronted the other boy about whether he was taking a photo of the victim’s rear.

“And (the mother) said why was Mike yelling at (her son) about Snapchat and not addressing that (the victim’s) underwear is ripped and his butt is exposed,” Hardcastle said during the deposition, taken Nov. 29. “She said how did Mike not address this behavior and why didn’t he take (the victim) aside and ask him about what had happened?”

Torgerson, who isn’t a district employee, did not speak with Hardcastle about the incident. He also declined to talk with an investigator from the AG’s office.

Added legal power

This week, Houston attorney Mark Lanier joined Schlender and Twin Falls attorney Keith Roark on the case. The National Trial Lawyers Association named Lanier its Trial Lawyer of the Year in 2016, after he won a $1 billion judgment against Johnson & Johnson in a lawsuit involving Pinnacle hip implants.

“My goal is to make sure no student in Idaho or anywhere else has this problem again,” Lanier told the Times-News. “We need to do something to protect our children who don’t fit in, aren’t the right color, aren’t the right religion and don’t fit that model profile. There’s a chance to do something here.”

Lanier is optimistic in part because of differences in wording between state and federal law. Since 2012, the Times-News noted, the U.S. Department of Justice has used a broader definition of rape that accounts for the use of an object in the crime. Lanier believes what happened in Dietrich matches that definition.

“I’ve got enough evidence,” he told the paper.

This story was originally published April 15, 2017 at 11:10 PM with the headline "Mental health exam could spur settlement talks in Dietrich assault lawsuit."