Empire, city attorney dispute public's right to know

Posted: Sunday, July 04, 2010

The city attorney has denied an open records request by the Juneau Empire for documents regarding rape allegations against a former UAS student that were dismissed last month.

Dominic Merrill was accused of raping his female roommate at University of Alaska Southeast housing on Jan. 23. Charges were dismissed June 10, but police and prosecutors were vague in describing why the highly publicized case was dismissed entirely, or what new information came to light.

City Attorney John Hartle said the information is protected under Alaska's Victims' Rights Act, which includes statutes on victim and witness information confidentiality. He did not return calls on Thursday or Friday.

Empire Managing Editor Charles Westmoreland said because charges were dismissed entirely there is no victim in the case to protect. Even still, in some cases the public's right to know trumps personal privacy, he said.

"The Empire believes the public should know why the charges were dismissed," Westmoreland said. "One minute police and the prosecution say there's physical evidence of a horrible crime, and then charges are dropped without any explanation as to why. The public has a right to know how this case was handled by all parties involved, and part of that is disclosing what new information was introduced."

A source with access to the information being sought after said the accuser and Merrill had a history of being sexual partners, a history the accuser failed to disclose to police or the grand jury. He said it's difficult to convict someone for rape under those circumstances.

The Empire was initially granted the documents by the Juneau Police Department, but before an Empire reporter could retrieve them the documents were sent to the city attorney's office for review. The newspaper also has requested the documents from the state and is waiting for a reply.

Alaska attorney Fred Triem described the issue as finding balance between "the right to privacy of an individual and what is classically known as 'the people's right to know.'"

"Citizens have a right to know what goes on in the court system," he said. "It is important for all of us to know how these cases are resolved, what the parameters are on them."

Triem said it is common for names of victims to be omitted when information is provided. Westmoreland said the Empire's policy is to not run the names of victims of sexual assault or rape.

"That is the solution here, for them to just give ... the documents without the victim's name," Triem said.

In February the District Attorney's office said new evidence came to light that tainted "one of the elements" of the case, declining to explain further. The prosecution had earlier referred to photos of bite marks and bruises on the accuser and a recorded conversation of Merrill apologizing for hurting the woman as evidence a rape occurred.

In the taped conversation, Merrill apologized to his roommate for hurting her, acknowledged blacking out when drinking, and said he felt like a "monster" for his actions. Superior Court Judge Trevor Stephens in February denied bail reduction for Merrill because of the severity of the injuries his roommate sustained. Juneau attorney Michael O'Brien and Arizona lawyer Mark Nemyr represented Merrill. District Attorney Doug Gardner prosecuted on behalf of the state.

O'Brien said during that February hearing the accuser had contacted him days before the grand jury convened to ask for his help in getting charges dropped.

Charges against Merrill were dismissed after he completed alcohol treatment at a facility in Arizona.

"Crimes affect everybody," Triem said. "We all have an interest in public safety, so it is everybody's business to know how a criminal case is resolved. It is not a private affair between the district attorney and the defendant; it is not a private affair between the defendant and the victim, even when the victim wants to dismiss the case."

• Contact Klas Stolpe at klas.stolpe@juneauempire.com.

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