The trial date for Joshua David Burger, 37, who was accused of sexually abusing a minor, was vacated in Juneau Superior Court on Thursday.
According to a recording of Thursday’s court proceedings, Judge Philip Pallenberg told attorneys he issued a ruling that vacated the trial date. The Empire could not obtain a copy of that ruling by press time.
District Attorney David Brower told Pallenberg he received a copy of his ruling that morning, and that he hopes to re-indict Burger within 20 days.
The district attorney’s office originally charged Burger last April with one count of first-degree sexual abuse of a minor, an unclassified felony. A few days later, Burger was indicted by a grand jury with 99 more counts of the same charge. The charges stem from incidents alleged to have occurred over a four-year period from November 2003 through December 2007.
Burger’s attorney Julie Willoughby filed a motion to dismiss the indictment and suppress evidence in October. She argued the government violated Burger’s constitutional rights of due process when one of the investigating police officers gave the judge who issued a search warrant a misrepresentation of the facts in the case by omitting and misstating certain facts.
Willoughby also argued Burger gave involuntary statements when police obtained search warrants to record his phone conversations with the parties involved. Police also went outside the scope of the warrant by recording an in-person conversation with Burger and one of the parties involved, who was wearing a body wire, Willoughby said. The warrant only authorized the recording of a couple specific phone conversations, she said.
“It violated Mr. Burger’s right to be free from unreasonable searches and seizures by obtaining the warrant when law enforcement misled the neutral magistrate; by law enforcement misstating material facts and omitting material facts; by introducing as the basis for probable cause, uncorroborated hearsay statements and supporting those statements with inadmissible and prejudicial uncorroborated bad act character evidence,” she wrote. “Moreover, the statements made by Burger in that flawed warrant were involuntary and psychologically coerced.”
In the state’s response, Brower argued the police officer did not mislead the issuing magistrate, and described the “psychological coercion” claim as almost laughable.
“If this were not such a serious case, that exchange would be laughable in light of the defendant’s claim of his being psychologically coerced. Taken in the best light, that claim is simply unbelievable,” Brower wrote.
It’s unknown which of Willoughby’s arguments Pallenberg agreed with since a copy of his ruling was unavailable in the court’s clerk office. Burger’s trial was slated to begin in two weeks.
Burger has been out on $500,000 cash bail since late January in the custody of his mother. Pallenberg, who appeared at Thursday’s hearing by phone, ordered Burger’s conditions of release remain the same.
• Contact reporter Emily Russo Miller at 523-2263 or at firstname.lastname@example.org.