WINNEMUCCA — The case against a man charged with felony child abuse for using a knife to scrape the nail polish off his 7-year-old son’s toenails was dismissed after Judge Richard Wagner ruled there was insufficient evidence provided at the justice court level to justify binding the case over for trial.

The dismissal occurred at a pre-trial writ hearing on Monday (June 7) in 6^th Judicial District Court.

Wagner said he was shocked when he saw the case and when he dismissed it commented, “This case has gone on long enough.”

Sebastian Deleon-Mariscal, 36, was arrested and charged with felony child abuse, neglect or endangerment after an investigation by the Winnemucca Police Department into the polish-scraping incident. The investigation was instigated by the child’s mother who is in a custody battle with the child’s father.

Both sides stipulated to the fact the boy was not physically harmed by the incident. Instead, the Humboldt County DA’s Office alleged the boy suffered severe mental trauma as a result of having the polish scraped off his toenails.

Deleon-Mariscal was represented in court by Robert Dolan, who alleged the mother was using the court system to lash out at her former husband who was seeking additional visitation with his children.

According to previous testimony, the mother was the person who applied the polish to the 7-year-old boy’s toenails even though she knew his father wouldn’t like it and the boy would soon be going to his father’s house for scheduled visitation.

In an interview with SPJ, Dolan was critical of the Humboldt County DA’s Office for pursuing the charges and asked, “Who is supervising the children at the DA’s Office?”

Dolan said, “This was an abusive, horrible display of oppressive government conduct.” Dolan praised Judge Wagner's decision and for his application of important Constitutional rights.

In court on Monday, Dolan reviewed the prior testimony of the expert witness, Reno psychologist Dr. Joann Lippert, who told the court the boy was sad, withdrawn, afraid, and anxious. Dolan noted those terms could be used for many local children experiencing tension and stress in the home.

He argued the state lacked evidence and the expert witness failed to link the boy’s behavior directly to the incident.

“This is an insidious use of state power in my mind,” Dolan added. “It’s very sad and there are lots of unfortunate motives.”

In a losing effort to justify the case, Deputy DA Tina Russom noted the state’s witness, Lippert, gave her professional opinion the boy’s behavior changed in negative ways after having the polish scraped from his toenails.

Judge Wagner questioned and then ultimately dismissed the notion the boy’s behavior could be tied to a single incident when he was caught in the middle of a custody battle.

Russom repeatedly returned to her argument that the expert witness would be able to separate the alleged mental harm caused to the boy by the polish-scraping incident from the general emotional upheaval of the custody dispute. Russom repeatedly said, “She’s the expert.”

But Wagner wasn’t biting. He noted in his many years on the bench he oversaw many custody battles and the behavior exhibited by the boy was common among children caught between two disputing parents.

Wagner said to Russom, “I’m not trying to be harsh. This is a serious thing to bring a man in and charge him with a felony for scraping fingernail polish off.”

The case was problematic for the DA's Office on multiple levels -- one of which was faulty paperwork.

The criminal complaint charged the defendant with prior documented harm, but did not state what the harm was. Russom was not able to successfully articulate the prior harm – other than the polish-scraping incident, which had already been mentioned.

The defendant, obviously, can’t defend himself against an allegation of prior documented harm that wasn’t documented or articulated.

In dismissing the case, Judge Wagner noted the expert witness’s testimony was insufficient for tying substantial mental harm to the action of the defendant. In addition, he noted a person cannot defend him/herself against a charge of prior documented harm that wasn’t documented in the felony complaint.

He granted Dolan’s pre-trial writ to have the charges dismissed.

Deleon-Mariscal’s bail was originally set at $10,000. However, due to the felony charges against him he was placed on an immigration hold.