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"If [Brown] was deprived of his ability to reason and could not intend his acts, then there should be coverage," State Farm attorney Bud Roberts argued. "If he had no such mental deprivation, then there should be no coverage."

But it would be State Farm's key expert witness who gave Heidi Harris' lawyers the courtroom advantage they badly needed.

IF ALL THIS weren't enough, the Maricopa County judge who presided in the State Farm case was Philip Marquardt. Marquardt quit the bench in disgrace recently after police arrested him on marijuana charges. He contended during a farewell press conference that he couldn't stop himself from smoking pot because his mental state had overpowered his will.

Those close to the Brown case found deep irony in that statement, for Jack Brown's mental state was the chief focus in the State Farm case. As often happens in civil cases, the outcome of State Farm's lawsuit against Jack Brown and Heidi Harris boiled down to the testimony of hired guns. State Farm's expert, Dr. Phillip Esplin, tried to show that Brown had known what he was doing when he molested Tina.

If the judge agreed with Esplin, State Farm's "intentional act exclusion" would go into effect. That would mean the company wouldn't have to pay Heidi Harris and Tina anything.

"Sexual molestation is sexual molestation," Esplin testified. "[Brown] had an interest sexually in the child. He acted on the interest. He tried to get away with it and ultimately got caught. To try to lay it on his financial status or his marital status or his self-image is very self-serving. I would just describe him as a child molester. I am rather shocked that there has not been a more rigorous pursuit criminally."

But Esplin unintentionally hurt State Farm's case more than he helped it. In a pretrial deposition, the psychologist had introduced the idea of "regressed child molestation." Harris' attorneys Bill Drury and Chuck Struble swooped onto the concept like owls on mice.

Psychological texts indicate that a "regressed" child molester differs from a pedophile--an adult who craves children for sexual gratification--in that his condition is temporary and is characterized by great stress and anxiety.

The Harris team's expert witness, Sandy Mazen, had been saying Brown suffered from a "generalized anxiety disorder" when he molested Tina. But soon he began calling Jack Brown a "regressed child molester" who wasn't able to control himself with Tina.

Mazen now told then-Judge Marquardt that Brown hadn't been capable of acting "in accordance with reason" when he molested the girl. "This resulted in an irrational compulsion or impulse to engage in such behavior," he said.

Mazen compared a "regressed child molester" to a person who overeats, gambles, steals, or starts fires--often "temporary" disorders. He admitted he didn't know Jack Brown's whole story. But Mazen--whose resume shows far more experience with molesters than Esplin's--was steadfast.

"I am saying," he testified, "that consciously [Brown] most likely did not know that it was wrong. Or was not aware of the negative implications of the behavior."

State Farm's attorney Bud Roberts came unglued after Mazen's testimony. "Mazen's opinions at trial were literally absurd, inherently incredible and unreliable," Roberts wrote. "Upon what psychological basis did Mazen render his opinion that [Brown] was not a pedophile? None. In short, [Brown] said he molested [Tina] because of stress and Mazen accepted that self-diagnosis hook, line and sinker . . . ."

On February 28, Marquardt--just months away from his own embarrassing resignation from the bench--made up his mind.

The judge agreed with Mazen that Jack Brown's "mental state had overmastered his will. His ability to act intentionally was negated by his mental state."

The judge cited a 1982 Arizona civil case to back his ruling. It says that if someone cannot "form the intent" to do wrong, public policy demands that insurance coverage applies.

Marquardt's ruling shocked the insurance industry. "State Farm will continue to attempt in appeal of this matter," Roberts said recently, "to apply a strong and overriding public policy which states that `pedophiles' and `child molesters' should not be allowed to hide behind liability policies when sued for such acts."

But Harris' attorney Chuck Struble notes that his side had offered to settle the protracted case for "substantially less" than $900,000 before and after Marquardt's ruling. "State Farm refused to engage in any settlement negotiations, much less make any reasonable settlement offers," Struble wrote. Another judge is considering State Farm's arguments for a new trial. It alleges that Marquardt's "addiction to drugs" made him unfit to sit in the Jack Brown case. No one dares predict what will happen in this tangled situation.

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Paul Rubin
Contact: Paul Rubin