A Juneau judge has accepted a plea deal that sentences Joshua David Burger to serve two years in jail for a sex crime, marking an end to the case that has been pending in court for more than a year and a half.
Juneau Superior Court Judge Philip Pallenberg said the agreed upon sentence seemed inadequate “to capture the wrong that was done” to the victim, and that he believed Burger was guilty of more than what he pleaded guilty to.
But rejecting the deal would not be in the victim’s best interest, Pallenberg said during Monday’s sentencing hearing, noting no one asked him to reject it, including prosecutors, advocates and the victim’s mother.
“It’s her interests that I look primarily to, so I’m not going to reject the plea agreement,” Pallenberg said. “I do so with full awareness that many people would look at this sentence that was agreed to and say it’s inadequate to capture the offense, and I share that feeling, but at the end of the day, as I said, I have to sign the judgment and I’m willing to do that.”
Monday’s hearing came to a halt about 30 minutes into the proceedings when Burger seemingly suffered a seizure while sitting at the defendant’s table. People in the courtroom cried out as his head flopped back, his body convulsed and he gargled for air.
The seizure only lasted a few seconds, and the judge cleared the courtroom as Burger was medically evaluated by Capital City Fire/Rescue medics. The medics brought a stretcher into the courtroom, but Burger was apparently deemed medically fit to continue with the hearing.
No explanation was given by Burger’s attorney, Julie Willoughby, when court was re-convened, and the judge only addressed it briefly, saying there was obviously was “a potential health issue” that was resolved.
Burger, 37, a former Alaska Permanent Fund Corp. employee who graduated from Princeton University with a degree in economics, avoided a jury trial by taking the plea deal offered by the state and pleading guilty to a lesser felony charge.
He was originally indicted in April 2011 on 100 counts of sexually abusing a minor, who is now 18, from November 2003 through December 2007.
Those charges were dismissed due to legal issues surrounding a Glass warrant that allowed police to record two of Burger’s phone calls and an in-person conversation.
The state then re-charged Burger this April with just four counts of sexual abuse of a minor. Those charges were dismissed by prosecutors when he pleaded guilty to the new, lesser charge of first-degree indecent exposure in September.
Assistant District Attorney Angie Kemp explained to the judge on Monday that the statements Burger made in the recorded conversations corroborated the allegations made by the victim in the case.
But with those statements suppressed, the state would not have a strong case at trial, Kemp said. That was an “enormous consideration” in deciding whether to offer Burger a plea agreement, Kemp said, acknowledging that it wasn’t an offer that “make(s) everyone happy.”
Burger was given the chance to address the court on Monday, but he declined. “No, your honor,” Burger replied when asked if he had anything he wanted to say.
The victim, who attended the hearing, also declined to comment to the court.
Her mother, whose name the Empire is withholding to protect the identity of the victim, did address the court and stood teary-eyed before the judge as she showed him pictures of her children.
She said her family has suffered for years from Burger’s psychological and emotional manipulation. She warned the judge that Burger was a dangerous sexual predator who exploited her child’s trust. Burger should be kept away from other children in the community, too, she said.
Pallenberg noted that this is not the sentence he would have chosen for Burger, saying, “If I were writing on a clean slate, I can say with some assurance that the sentence I impose would not be eight years with six suspended.”
Pallenberg added, “In some ways, when the court is trying to decide a sentence, the court has to try to come up with gradations of evil, if you will. That’s a hard thing to do especially in the aftermath of what happened in Connecticut a few days ago. But I think everybody would agree that sexual misconduct against a child is among the most fundamental breeches of what we value as human beings.”
First-degree indecent exposure is a class ‘C’ felony that has a maximum possible penalty of 99 years in prison. But its presumptive sentencing range for someone who does not have a prior felony conviction, such as Burger, is two to 12 years in prison.
The offense is a designated sex crime, which means Burger will be required to register as a sex offender once he is released from prison. He will also be required to seek sex offender treatment while incarcerated.
The plea deal that was accepted requires Burger to be on probation for 10 years after he is released from prison. His conditions of probation include no contact with the victim in the case, or with any minor under 16 years of age.
Burger began serving his prison sentence after he changed his plea in September.
• Contact reporter Emily Russo Miller at 523-2263 or at email@example.com.