After successfully urging the court to dismiss the first indictment against her client, the attorney for Joshua David Burger wants the same for the second.
Defense attorney Julie Willoughby filed a motion in Juneau Superior Court on Wednesday to dismiss the new indictment against Burger, 37, which alleges four counts of sexual abuse of minor. The alleged conduct stems from 2004 to 2007.
“In presenting the second grand jury in this case, the state presented an even more truncated case than in the first flawed, and now dismissed, indictment,” Willoughby wrote in her motion. “While this presentation was different, it suffers from many of the same errors, such as presentation of inadmissible bad act evidence and vague and changing statements and allegations by the complaining witness.”
Burger, a former Alaska Permanent Fund Corp. employee, was originally indicted by a grand jury last year on 100 felony counts of sexual abuse of a minor. He was re-indicted this April after a judge dismissed the 100-count indictment and ruled that inadmissible evidence had been presented to the grand jury.
The judge, Philip Pallenberg, additionally took issue with the structure of the 100 counts themselves, which resulted in the new indictment being more consolidated.
Willoughby argued in her 17-page motion that the district attorney’s office once again presented inadmissible evidence to the grand jury, which convened April 13, when it allowed “protected confidential Clergy communications” testimony from Burger’s pastor, Steve Olmstead from Chapel by the Lake.
“Alaska Evidence Rule 506 states that an individual has a privilege to prevent another from disclosing a confidential communication made by the person to a member of the clergy in that individual’s professional capacity as a spiritual advisor,” Willoughby argued. “As ARE 506(2) states, a communication is confidential if it is not made in public and if the person making the communication intends that there be no further disclosure of the communication.”
According to Willoughby’s motion, Olmstead testified that he had met with Burger to talk about treatment options for him. During that conversation, Olmstead told Burger that in order for treatment to be successful, Burger would have to be truthful about what happened. Burger responded by saying he couldn’t be truthful “because he would then to go jail,” according to the motion.
Willoughby requested an evidentiary hearing to be held in Superior Court in order to prove that Burger believed his conversations with his pastor would be confidential and subject to privilege.
Willoughby also took issue with alleged prior “bad act” evidence that was presented to the grand jury, including a statement that Burger had molested a family member when they were minors.
Willoughby argued that in order for such a statement to be admissible, the government would have to establish that the offense occurred within 10 years of the offense charged, and that the offense is similar to the offense charge, along with other parameters. The state failed to do that, Willoughby argued.
“Thus, since the state failed to present any evidence to establish that the alleged prior bad act fell within these parameters, the bad act evidence was inadmissible,” Willoughby wrote.
Another problem Willoughby found with the grand jury proceeding was that the victim, when testifying, was allowed to review a transcript of an earlier conversation with Burger that police recorded wherein Burger gives admissions of guilt.
Pallenberg ruled in March that those conversations were recorded illegally, and thus that evidence must be suppressed, because there were problems with the warrant that authorized those conversations to be recorded.
“The question before this court then is: Is this transcript a fruit of the poisonous tree and therefore cannot be used to refresh a recollection?” Willoughby wrote. “The answer is yes. As the Alaska Supreme Court has said: ‘The prosecution is not to be put in a better position than it would have been if no illegality had transpired.’ Here, the prosecution is clearly benefitting by having and using a transcript of suppressed statements. As such, the Grand Jury testimony of (victim) made after (victim) reviewed transcript is inadmissible.”
Lastly, Willoughby argued the state did not have sufficient evidence to support the new indictment, and asked Pallenberg to determine whether “a sufficiently-detailed description of criminal activity exists.”
The district attorney’s office will have time to respond to Willoughby’s motion before Pallenberg makes his ruling.
• Contact reporter Emily Russo Miller at 523-2263 or at firstname.lastname@example.org.
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