A special judge appointed to the case of a junior high coach charged with battery said he'll consider over the weekend a defense motion to dismiss the charges.

Malvern attorney Louis Loyd was appointed as special judge presiding over the case against Malvern Junior High School Coach Terry Russell. Russell is represented by George Hopkins, and Seventh Judicial District Deputy Prosecutor Richard Garrett is special prosecutor.

In late January, Russell paddled a seventh grade boy for scuffling. Several hours later, when the boy's mother got home from work, the boy showed her red welts on his buttocks and upper thigh. She immediately called police.

Russell was cited for battery third degree. His attorney, George Hopkins, said at a hearing Friday that no probable cause hearing was held before a judge prior to Russell's citation, and filed a motion to dismiss the charge because there was no indication that Russell had failed to follow school policy.

Garrett agreed that Russell was entitled to a probable cause hearing but said his compliance with school policy was part of proof to be submitted.

The 13-year-old victim testified at Friday's hearing that another student had shoved him, and he tripped another boy, who fell. He and the student who pushed him were both disciplined, the boy said.

He said they were given a choice of two 'licks' with a paddle or five days of in-school suspension (ISS). Both chose the paddling.

The boy testified that Russell gave the paddling after determining through MJHS Assistant Principal Danny Lindsey that the boy's mother hadn't signed a corporal punishment waiver, prohibiting the school from paddling him.

The boy said he had bruises up to a week later and was sore for about two weeks.

He said "they" told him taking the paddling would be better than ISS because "it's over in two minutes."

But he said he was never warned or told that scuffling would result in corporal punishment.

The school's student handbook says on page 18, in the corporal punishment subsection, that students "must have had prior warning that continuing or repetition of misconduct would result in corporal punishment."

The boy's mother, Kimberly Garza, testified that when she saw the red welts on her son's body, she called police. She has always allowed the schools to administer corporal punishment, she said, but has in the past been notified by phone prior to punishment being administered. That didn't happen this time, she said.

Garza admitted that school policy doesn't require prior notification. It does, however, say that parents who request an explanation will receive one in writing, explaining the circumstances and identifying the witnesses to the punishment.

Garza said she didn't get the written explanation of the incident until about two weeks ago - almost two months after the incident.

She said when she called the school, assistant principal Lindsey told her she was not allowed on the school campus and said he would send the documentation home with her son.

Lindsey said Friday afternoon that he did not tell the woman she wasn't allowed on campus.

Malvern Police Cpl. Ryan Burris said at the hearing he took the initial report from Garza, contacted Lt. Bill Ross and, at Ross' instruction, issued a citation to Russell for battery third degree.

Ross said he took photographs of the welts, which later turned to bruises.

Garrett said the photos show that injury occurred, establishing probable cause for the battery charge.

But Hopkins disagreed, saying as a teacher, Russell is held to different standards of criminal conduct. He said Russell was simply implementing school policy and did not act inappropriately, and said the bruising was a "transient injury that was appropriate."

Loyd said he would take the testimony under advisement and will issue a decision early next week.

Malvern Superintendent Ron Holt said Friday afternoon that based on the information he received through the school system, "the appropriate procedure was followed in the administration of punishment, to the best of my knowledge."

Holt couldn't comment extensively because the matter is a personnel issue. He did confirm, though, that policy does not require the school to notify parents of corporal punishment administered to a student, and that parents can file a request that their child not be paddled.

In the meantime, another parent has contacted the police department about a similar incident. Marie Davis said she spoke with officers this week about a baseball-sized bruise her son suffered when Russell paddled him in November.

In mid-November, her son, then 12 years old, was paddled for fighting with another student. Davis called the Department of Human Services, but said DHS told her two weeks later they couldn't do anything because the school followed procedure.

According to the DHS report, which Davis provided to the Malvern Daily Record by request, there was a "question as to if the paddling Š was the cause of the bruise. Russell followed the school's policy regarding paddlings. There is not a preponderance of evidence to support allegations Terry Russell physically abused (the child)."

The police department could not comment on that case because charges have not been filed.