1 accuser recants, 2d alters story in rape case
Judge still won't free carnival worker, 18
One of the girls who accused an 18-year-old Marshfield Fair carnival worker of raping her and another girl over the weekend has recanted, and the other girl has changed her account substantially, prosecutors said yesterday.
At a hearing in Plymouth District Court, prosecutors asked a judge to reduce bail for Jeffrey D. Witham of Oxford, Maine, who was accused of raping the girls, ages 13 and 14, at one of the girls' homes in Marshfield on Sunday. He was being held on $150,000 bail.
"Given the state of the evidence, I don't feel it's just to hold the defendant in custody," Assistant District Attorney Peter Maguire said.
Judge Ronald F. Moynahan, however, denied the request for the lower bail.
Prosecutors said one of the alleged victims, the 14-year-old, changed her story and said she consented to having sex with Witham. They said the other girl, 13, told investigators that contrary to her previous account, she was not chased, bitten, or kidnapped by Witham. But the younger girl continues to maintain that Witham raped her.
Prosecutors added that the older girl cast doubt on whether Witham raped the 13-year-old. She told investigators there was not enough time for them to have had sex.
"These events constitute a change in circumstances with regard to the defendant's bail," said Bridget Norton Middleton, a spokeswoman for the Plymouth district attorney's office.
In rejecting the bail reduction, Moynahan browbeat Maguire for providing inconsistent and incomplete information. Moynahan criticized prosecutors for being unable to say how Witham got the phone number or address of the girls or to detail the extent of the injuries they allegedly suffered. (Lawyers representing Witham said yesterday that the girls gave him their phone numbers and invited him over.)
Moynahan said prosecutors must decide whether to move ahead with the case or drop the charges. He said he was reluctant to reduce the bail because the girls were still saying they had sex with Witham, which could constitute statutory rape and carry a life sentence.
"Are you telling me that you're representing to the court that you no longer believe there was a kidnapping, which is a capital offense that carries life imprisonment, and you want to keep that hanging over this defendant's head?" Moynahan asked Maguire.
Maguire said he was not ready to drop the charges because the case remained fluid. "As the stories have already changed once, I don't know if they're going to change again," he said.
Moynahan responded: "So you want to keep the cases pending but you don't believe the witnesses?"
He added: "You're moving forward on a case, but you don't have a good-faith basis."
Witham pleaded not guilty Monday to two counts of rape of a child with force, indecent assault and battery, indecent assault and battery on a person under 14, kidnapping, and assault and battery.
Michael Bergeron, a Duxbury lawyer representing Witham, said he hopes prosecutors dismiss the case in the next few days. He plans to appeal the bail tomorrow in Brockton Superior Court.
"It's been a fluid situation over the past 24 to 48 hours with the client, and unfortunately he's caught in the middle right now," Bergeron said. "All parties, including the district attorney's office, would expect him to be released in the near future."
Doris Witham, the defendant's grandmother, with whom he lives and who drove from Maine for yesterday's hearing, insisted that her grandson is not violent.
"I knew he wasn't capable of doing anything like they were saying," she said. "My first thought was that this must have been a setup. He's a good kid. He's a hard worker. I just couldn't believe it. I knew something was wrong."
She said she was disappointed the judge did not release Witham. "I'd like him home," she said.
The two girls initially told police that they had recently met Witham, a newly hired ticket collector for the carnival's rides, and that they had spoken to him on their cellphones before he went to one of their homes Sunday, according to court records.
They said he arrived at the home when they were alone, entered their living room, and began to touch them inappropriately. "The suspect then grabbed victim #1 and took her into her bedroom down the hall and climbed on top of her on her bed," according to a police report.
The report continued: "She told him to stop and kept saying no, but he proceeded to have intercourse with her and wouldn't get off of her. She then said he eventually got off of her and went back into the living room, where he then assaulted victim #2 again."
The girls said they later fled the house after Witham became angry when he could not find his clothes. They told investigators he had chased them and caught one.
"The suspect grabbed hold of her and bit her on the neck," the report said. "He then started dragging her into the woods as she attempted to fight him off. Victim # 2 said she was scared she was going to get raped again."
The episode ended when one of the girls called a parent, who contacted Marshfield police.
Maguire told Moynahan yesterday that the girls now say they were never chased. He told the judge that the alleged bite was a mark from a previous consensual relationship.
David Abel can be reached at dabel@globe.com. 