Archive for Monday, November 30, 2015

No sanctions imposed after Douglas County prosecutors disseminate sealed record

November 30, 2015

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Douglas County District Judge Paula Martin on Monday decided not to impose any sanctions against the Douglas County District Attorney’s Office after prosecutors in a rape case admitted to improperly disseminating a sealed document.

The affidavit regards the alleged victim’s previous sexual conduct and was filed under seal in August by the attorney of one of the two defendants in the case. The document was filed under seal because of the “rape shield” law, which limits the introduction of evidence at trial regarding an alleged rape victim’s sexual history.

The defense attorneys in the case had argued that the dissemination of the sealed record tainted witnesses’ testimony.

The prosecution's case alleges that a 21-year-old man and 20-year-old man raped a fellow student in their Haskell Indian Nations University dormitory on Nov. 15, 2014. The 21-year-old is charged with aiding and abetting attempted aggravated criminal sodomy, aggravated criminal sodomy, aiding and abetting attempted rape and two counts of rape. The 20-year-old is charged with two counts of rape and one count of sodomy. Both have been expelled from Haskell since the accusations were made.

On Monday, prosecutor Mark Simpson acknowledged the DA’s Office made a “good faith error” when prosecutor Catherine Decena gave the sealed affidavit to Lawrence police detectives to conduct an investigation into the allegations in the document. Lawrence police detectives then showed the sealed document to five witnesses — including the victim in the case — even traveling out of state twice to conduct the interviews.

Simpson argued that there was “no harm to the defendant or anyone here” by sharing the private document. He also said that if the state would have asked for the court’s permission before disseminating the document, it likely would have been granted.

The hearing to decide a proper remedy for the violation came after both defendants’ attorneys, Sarah Swain and Angela Keck, filed a joint motion asking for such on the theory that the action violated due process and that the interviews and sharing of the documents unfairly tainted the witnesses’ testimony.

“I don’t know how a flagrant disregard of the rules can be a ‘good faith mistake,’” Swain said. “If this was a federal case, it would have been a crime — a misdemeanor," referring to the dissemination of sealed documents.

Keck alleged that the information was disseminated because prosecutors were “so blinded by (their urge) to discredit what was in the affidavit that they ignored the black and white letter of the law.”

However, Simpson denied that was the case.

“We were not trying to find evidence to support our case, but to find the truth,” Simpson said.

But Swain alleged that there was a double standard in conducting the investigation.

“If we would have gone out and done the exact same thing the police did, our clients would be charged with intimidation of a witness … (or) disseminating information.”

To remedy the situation, the attorneys asked that one of four possible actions be taken:

  • To dismiss the cases against their clients.
  • To exclude the testimony of those who were shown the affidavit — including the victim — from the jury trial.
  • To rule that all of the sealed information about the victim’s alleged previous sexual history in the document should be admissible at trial because Swain argued that “any privilege to that information has now gone away.”
  • To disqualify the DA’s Office from prosecuting the case.

Martin ultimately ruled that no such action should be taken. She said that “none of this should have happened without the court’s approval,” but that “there is a difference between confidential vs. sealed” documents and that the purpose of the law that required the affidavit be sealed “is to protect the (alleged rape) victim.”

“The court doesn’t find (the witness testimony) to be tainted,” Martin said. “(Investigators) didn’t mold their testimony.”

But Keck questioned how the court could make that finding after Martin did not allow the defense to present evidence Monday of the misconduct. The defense attorneys had planned to question Lawrence police detectives on the stand about what occurred during the dissemination, but the detectives were not called to the courthouse to testify.

“(Prosecutors) have to put on a case to prove there was no tainting,” Keck said. “The state had a burden to prove their violation wasn’t outrageous misconduct.”

Keck said they needed the evidence to be presented to prove how she and Swain’s clients’ cases were harmed by the prosecution’s violation. She said she plans to relitigate the issue, which will have to be done in a closed hearing out of the public’s eye because of the sealed information in the affidavit.

“The facts of the affidavit are sealed so when we want to argue how the interviews were tainted, we have to stand silent (in open court),” Keck said.

Simpson said that his “review of the motion shows no tainted witnesses” and that the investigation was “diligent police work and the state’s error is” not asking permission first.

Though Martin didn’t impose a penalty, she said she was “sure” the violation “will not happen again.”

Simpson agreed, saying that the incident “certainly made an impression” in the DA’s Office and that “everyone can rest assured this will not happen again.”

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