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Defense has discovery requests in sex assault case

Posted: January 25, 2013 - 1:08am
Frank W. Lee, 60, who is charged with sexually abusing a woman while she slept, appears in Juneau Superior Court on Thursday.   Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Frank W. Lee, 60, who is charged with sexually abusing a woman while she slept, appears in Juneau Superior Court on Thursday.

Editor’s note: The following story contains a description of an alleged crime of a sexual nature. Readers are encouraged to use their own discretion when deciding whether to read this article.

Discovery requests have taken the forefront of a Juneau sex assault case that is slated to go to trial in June.

Public Defender Eric Hedland, the defense attorney for defendant Frank W. Lee, wants to compel disclosure of prior police contacts that the alleged 22-year-old victim in the case might have had, as well as her phone and text messages around the time the grand jury convened.

Hedland says he made the request for the police records after several witnesses told him the alleged victim has made false allegations of sexual assault in the past.

“The largest point here, I think, is that we have a person who is charged with an unclassified felony based upon what this woman said,” Hedland told Juneau Superior Court Judge Louis Menendez during oral arguments on Thursday. “And her credibility is paramount. Her bias is paramount. Her motives paramount, and we don’t want to give away our defense case, but I don’t have a problem saying that our position is that what she’s saying is not truthful.”

Lee is charged with sexually assaulting the woman as she was sleeping over at Lee’s house after his 60th birthday celebration the night of Sept. 10, 2012.

Prosecutors say he digitally penetrated her and made oral contact with her genitals without her consent or knowledge while she was sleeping. Prosecutors also say there are two eye witnesses — the woman was sleeping on a bed with her son, and her friend was also in the room — and that Lee admitted the acts during a later phone call that was being recorded by police.

Lee was indicted by a Juneau grand jury on one count of first-degree sex assault, which is an unclassified felony that can carry up to 99 years in prison, and two counts of second-degree sex assault, which are class ‘B’ felonies.

On Thursday, Assistant District Attorney Amy Williams said Hedland’s request for the police records was overly broad, irrelevant and not in possession and control of the state.

“Basically, he’s requesting a nationwide search for any police contacts made by the victim,” Williams said, calling it a “fishing expedition.”

Williams added that evidence, if it exists, has not been shown that it’s material to the case at hand, which is a requirement under Alaska criminal rules.

In a rebuttal, Hedland argued that he is not asking to review the prior police contact evidence himself — he’s asking that the court review it to see if it’s material to the case. He emphasized that the state has access to state and federal law enforcement criminal databases to which defense attorneys do not have access.

“Let’s say — not in this case, but in another case — a person says ‘This person raped me.’ And six years before that, it had been decided by some police department in some other jurisdiction that the same complainant had made a report of a sexual assault that the law enforcement chose not to prosecute. They didn’t believe that it was truthful. Would that be material and relevant? Yes, under Morgan, it definitely would be,” Hedland said.

Hedland also requested the phone and text message records after a grand juror said he overheard the alleged victim in this case say on the phone, “In order to get rid of someone that you don’t want to have around, just accuse them of rape, testify to a grand jury, and it’s done and over with,” according to Hedland’s motion.

Hedland said the grand juror overheard those statements at a bus stop as he was going home from the grand jury proceedings. According to the written motion, the grand juror said he felt “disturbed” by her statements and he had the overall impression that she was “acting as if it was a game.” The juror came forward on his own volition to the judge and a prosecutor about the matter about a week later, and they had a conversation about it that was recorded. The prosecutor said he or she did not believe that the alleged victim made those comments.

Hedland requested that the government turn over the alleged victim’s phone and text messages around that time period to see if similar statements were made.

In turn, Williams argued that would infringe upon the alleged victim’s right to privacy and would allow the defense to fish for derogatory victim evidence.

“In the hands of an aggressive, imaginative defense attorney, the scope of documents that could be requested as ‘discovery’ is practically limitless,” Williams wrote in her motion. “Here, the defense is engaged in a ‘shopping expedition’ to assemble victim-derogatory evidence in the form of phone records and text messages on the basis of an unverified, unsworn statement of a grand juror.”

Judge Menendez said he would make a ruling about the requests next week. Another pretrial hearing in the case is scheduled for next Tuesday, regarding a crime lab issue.

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

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