Judge throws out Nebraska rape case over recorded attorney-client calls

LINCOLN — The 56-year-old registered sex offender spent the past 18 months in the Red Cloud jail, staring at a possible life sentence on charges that he violently raped a 15-year-old girl.

On Friday, he walked out a free man.

Webster County District Judge Stephen Illingworth dismissed the felony and misdemeanor sexual assault and child abuse charges not because new evidence cleared the accused. Rather, the judge said the state’s case was fatally tainted by recordings of jail phone calls between the defendant and his lawyer that were obtained by the lead criminal investigator.

Just as troubling, the judge said, were videotaped statements of Webster County Sheriff’s Sgt. Dianne Nichols saying she was “skirting a few things” to take down an accused rapist.

“The court finds that dismissal of the charges is the appropriate remedy for Sgt. Nichols’ deliberate intrusion into the attorney-client relationship,” the judge said in his order. “It will chill and strongly discourage future intrusions of this fundamental constitutional right.”

In addition, the judge said: “To rule otherwise would send the wrong message to law enforcement.”

A spokeswoman for Nebraska Attorney General Doug Peterson, whose office was assisting in the prosecution of the case, said Friday that the ruling was being evaluated for potential appeal.

Defense attorney Ben Murray of Hebron said his client was released from jail late Friday afternoon.

The World-Herald has not identified the man because he is related to the young woman who accused him of the crime. Although she didn’t report the sexual assault for several years, she said it took place in 2013 when she was 15.

Although there have been several other recorded phone call cases addressed by Nebraska courts in recent years, this marked the first that resulted in dismissal of serious felony charges, Murray said.

“We can’t have police officers out there who are willing to skirt the law,” he said. “If somebody cuts corners or cheats, it takes the possibility of a fair trial off the table.”

A phone message left late Friday afternoon for Webster County Sheriff Troy Schmitz was not immediately returned. As of last week, Nichols was still working at the Sheriff’s Office, Murray said.

At a July hearing on the motion to dismiss, Murray showed that the Sheriff’s Office had downloaded 60 recorded phone calls placed by his client from the computer server that stores recorded calls at the jail. Inmate calls are routinely monitored by jail officials, and recordings of all conversations — except those with lawyers — can legally be turned over to investigators or prosecutors.

But in the Webster County case, three of the calls were placed to Murray’s office and one captured about five minutes of the two discussing trial strategy. Under the Sixth Amendment right to legal counsel, conversations between attorneys and clients are to be confidential.

Nichols testified that she knew that she wasn’t supposed to listen to attorney-client calls, so she stopped once she realized that they had been placed to Murray’s office. But she testified that she didn’t know that she was obligated to report the existence of the calls, so she never wrote up a report.

When prosecutors realized that the privileged calls had been obtained by the investigator, the calls were turned over to the defense. The judge said in his ruling that there was no evidence of misconduct by the prosecution.

But the judge rejected the state’s argument that the intrusion was unintentional and did not reveal prejudicial information . In essence, he said he couldn’t believe the investigator.

“How does the court know if this is true?” the judge said. “The only evidence the court has to gauge her credibility is her words and actions. Her statements … clearly show she was willing to cross the line to convict the defendant.”

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