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Records are ruled privileged in sexual abuse trial

Other motions in Joshua Burger case still pending

Posted: August 10, 2012 - 12:06am

A Juneau Superior Court judge has denied several records requests from a defense attorney representing a man accused of child sex abuse, the latest of which would have required a counselor to an alleged victim to release privileged documents.

Judge Philip Pallenberg said in his ruling last Thursday that if that request was granted, it could have a “substantially chilling effect” on any victim’s willingness to seek counseling in the future.

He noted those records could be used for relevant impeachment information, which could to be used against a victim during court proceedings.

“There is a strong policy interest in support of allowing victims of sexual abuse to consult freely — and confidentially — with counselors,” Pallenberg wrote.

The State of Alaska, the Office of Victim’s Rights and the alleged victim’s guardian ad litem had all opposed the motion, which was filed by Joshua David Burger’s attorney Julie Willoughby. They cited psychotherapist-patient privilege.

Willoughby had requested in January to compel testimony of the alleged victim’s counselor, or alternatively, for an in camera review of counselor’s records of her counseling of the victim. “In camera” means the documents would be available to the court, but not the public or press.

Pallenberg previously denied requests from Willoughby in June for an in camera review of records from the alleged victim’s high school counselor; North Star Behavioral Health, where the victim received treatment; and AWARE, short for Aiding Women in Abuse and Rape Emergencies, a Juneau shelter where the alleged victim received help in this case.

Burger, 37, is slated to go to trial in Juneau in September. He is facing four felony charges of sexual abuse of a minor, which stems from alleged offenses from 2004 to 2007.

Other motions are still pending in the case, including a motion to dismiss the indictment against Burger and a request for an evidentiary hearing.

On Tuesday, Willoughby filed a new motion, Case Motion #33, asking the court to order a mental examination of the victim, which prosecutors opposed.

Burger is a former Alaska Permanent Fund Corp. employee and is awaiting his trial in Massachusetts, where he is staying in the custody of his mother, Barbara Sager, a court-approved third-party custodian. She previously posted $500,000 bail on her son’s behalf.

Burger is next scheduled to appear in court at the end of August for a pretrial hearing.

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

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