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Rape case defense succeeds in judge-only motion

Prosecution fails in motion against judge

— The attorney for a teenage male accused of raping his girlfriend requested to waive a jury trial based, in part, on the possibility that race could play a role in the verdict.

James Leuenberger of Lake Oswego, who represents the defendant, said people that he questioned expressed concern that a “Mexican boy who is accused of raping a white girl” would not get a fair trial in Wasco County.

“So, I made the recommendation that he waive his right,” the attorney told Circuit Judge Janet Stauffer, who is overseeing the three- to five-day-trial that began Monday.

The defendant was 17 at the time the crimes against a 15-year-old girl were allegedly committed. His name will be withheld, as well as that of the victim, unless he is found guilty at the conclusion of the trial. Under Measure 11 mandatory sentencing guidelines, which do not allow for “good time” reductions, the defendant faces up to 20 years in jail for the first-degree rape charge, which carries a mandatory minimum sentence of eight years, four months. He is also facing the same potential sentence for first-degree unlawful sexual penetration and sodomy, and penalties for three counts of misdemeanor sex abuse.

Chief Deputy District Attorney Leslie Wolf argued that the community needed to be represented by jurors who weighed the evidence before making a decision.

“It’s a high profile case that the community has been very interested in,” said Wolf. “They’ve watched it and it might protect the defendant better if it goes to (jury) trial.”

The girl’s father is in law enforcement and both teenagers attended The Dalles Wahtonka High School before and after the defendant’s arrest.

Students have lined up to support one or the other of the parties and have used Facebook, Twitter and texting to weigh in on the issue extensively. During the past year, the defendant has been arrested twice for violating his conditions of release from jail by communicating with female peers, which he is prohibited from doing.

Wolf also raised the challenge brought by herself and Wasco County District Attorney Eric Nisley to keep Stauffer from hearing the case as another reason to convene a jury. In July, the prosecutors lost a bid at the state level to have Stauffer replaced with another judge on the grounds that she would not be unbiased during the proceedings.

At a hearing in 2012, Stauffer told Wolf and Leuenberger that she knew many of the youth involved in the case, including several witnesses, because they had gone to school with her children. She did not specifically say that she was acquainted with either the defendant or the alleged victim, nor did she declare a conflict of interest.

Wolf said the verdict could be challenged by the state for bias if Stauffer ruled in favor of the defendant. Conversely, she said Leuenberger could appeal a guilty verdict on the belief it had been made to counter the perception that the judge was biased.

She said due to the serious nature of the charges, the case should be heard by a 12-member jury and not one person.

“Your honor, based on all the factors in this case, the state is asking that you deny the defendant’s motion,” she said.

Leuenberger presented case law to show precedent for granting his request, adding that a new indictment of sexual abuse, which was only recently added, could create confusion and further prejudice for the jury.

“Mr (name of defendant) and I are confident we will get a fair trial without a jury,” he said.

Stauffer said she had “wrestled” with the issue of the community deciding through a jury if its standards of conduct had been violated, as raised by Wolf, and then reread the case law supplied by Leuenberger several times.

According to the judge, she is given the discretion by law to waive the jury if certain criteria are met. She said the legislature had amended Oregon’s constitution to allow waivers to help clear the backlog of causes awaiting adjudication.

Stauffer said the request had to be with the full knowledge of the defendant about the constitutional protection that was being given up. However, she still had to be sure his rights would be upheld if she was the only decision maker. She also factored in the savings to the county of not paying jurors either $10 or $25 per day to be involved in court proceedings.

She had put the 79 people in the jury pool on standby for Tuesday in case she decided to proceed in that direction and have 12 chosen to render a verdict.

“I think this is a case where it’s appropriate to consent to the waiver,” said Stauffer.

After a few other pre-trial motions were heard, most of which went to Wolf, Stauffer assumed the role of judge and jury to hear arguments.

Wolf’s opening statement told the story of a young girl who began dating an older teen in November of 2011 and ended up being controlled and manipulated by him. She was then raped and forced into several sexual acts during the late winter and early spring of 2012. Even though the couple also had consensual sex and the girl never told her family and friends about the abuse, Wolf said experts would testify about those actions being common behavior among rape victims. She said the defendant had also confessed to detectives about using force to subdue the victim during a recorded phone call with the girl and when questioned by investigators.

“This case is about a controlling young man who refused to take ‘No’ for an answer on more than one occasion,” she said.

Leuenberger said the case was about “mixed messages” given by the girl to the defendant via text message and Facebook postings, and during interviews with law enforcement officials. He said sexually graphic messages and pictures were exchanged between the couple after she claimed the rape and sex abuse occurred, and she invited the defendant to a tryst in her family home, and arranged one at a friend’s home. He said the girl did not say anything to her family and friends about being abused until she reportedly had a nightmare in June. She then confronted the defendant but then texted him a couple of weeks later about engaging in further sexual activity.

“The key thing is not whether she consented, the key thing is if (name of defendant) knew she did not consent,” said Leuenberger.

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