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Joshua Burger re-indicted for child sex abuse

Posted: April 13, 2012 - 6:13pm  |  Updated: April 14, 2012 - 11:08pm

A Juneau man accused of child sex abuse was re-indicted Friday after previous charging documents were dismissed last week.


Joshua David Burger, a former Alaska Permanent Fund Corp. employee, once again faces multiple counts of sex abuse of a minor.


This time, however, the indictment charges Burger with four counts of sex abuse instead of 100.


Two of those four counts allege first-degree sex abuse of a minor; the other two are second-degree charges.


Attorneys are scheduled to meet Tuesday to discuss how the case will proceed.


Burger, 37, was originally indicted by a grand jury convened by the district attorney’s office last April on 100 counts of first-degree sex abuse of a minor. Those charges stemmed from alleged instances spanning over a four-year period, 2003 to 2007.


His case was scheduled to go to trial next week, but was vacated when a Juneau Superior Court judge ruled inadmissible evidence was presented to the grand jury that issued the 100-count indictment.


Judge Philip Pallenberg agreed with Burger’s attorney Julie Willoughby the evidence should be suppressed, and later, that the indictment should be dismissed.


In his earlier March ruling, Pallenberg found two problems arose when Juneau District Court Judge Keith Levy issued warrants to record two of Burger’s phone conversations and an in-person conversation last April, wherein Burger gives admissions of guilt.


Pallenberg found there was no probable cause those conversations would produce evidence of the crimes in question.


“It is clear to me that there was probable cause given to Judge Levy to believe that the defendant committed the crime of sexual abuse of a minor,” Pallenberg wrote. “This is not sufficient, however, to justify issuance of a warrant.”


Pallenberg added, “Probable cause to believe that Mr. Burger committed the crimes does not establish probable cause to believe that seizing his conversations will produce evidence of those crimes.”


The second issue was the warrants were not specific enough as to the conversations to be seized, according to the ruling. The warrants allowed the listed parties involved to record conversations within 30 days between 7 a.m. and 10 p.m. Pallenberg calls that a “sweeping blanket authorization” that failed to describe what conversations might take place.


“These were general warrants which contained no particularity at all,” Pallenberg wrote. “Normally when officers apply for a Glass warrant, they give a description of the plan which will allow both an assessment of probable cause to believe that statements will be made, and which will allow the warrant to be framed with requisite particularity. Here that was not done, which deprived Judge Levy of the opportunity to satisfy those requirements.”


A Glass warrant is the type of warrant issued that authorizes law enforcement or other government agencies to record conversations without permission of any of the parties involved in those conversations.


In his ruling last Thursday to dismiss the indictment, Pallenberg took issue with the structuring of the 100 counts themselves. They were based on a mathematical formula, not a recollection of an instance of abuse, he said.


The evidence as to the number of counts was weak without the inadmissible evidence that was presented to the grand jury, Pallenberg wrote.


The new indictment lists a broad time span during which sexual abuse is alleged to have occurred, the years 2004 and 2007, according to the indictment.


A jury trial has not been rescheduled yet, but when it is, Burger’s attorney Willoughby doesn’t want it to be held in Juneau. Willoughby recently moved for a change of venue, saying her client would not have a fair and impartial jury trial due to the Empire’s press coverage.


District Attorney David Brower has opposed that motion, arguing in short crimes should be tried where they occur.


A ruling on that matter has not yet been handed down.


Burger has been out on $500,000 cash bail since late January in the custody of his mother. His conditions of release remain the same.


• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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