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Prosecutors face inquiry over dismissal of rape case

Grand Forks County State's Attorney Peter Welte and Assistant State's Attorney Meredith Larson today will face an inquiry committee of the North Dakota State Bar Association investigating a complaint of prosecutorial misconduct by a woman who says they failed to pursue a case against a man who had been charged with raping her.

Naomi Lee, 22, Grand Forks, made the complaint to the North Dakota Supreme Court after Larson decided last fall to drop the case against the man because Larson said there wasn't enough evidence after a judge threw out the man's statement to police.

Lee says she is very angry at prosecutors and the "whole system," and that she "feels let down by everybody," in the case.

Today's hearing in Grand Forks is confidential. Even Lee's father, Grand Forks County Sheriff's Deputy Mike Lee, can't attend, he said. Mike Lee has helped his daughter pursue the case and said he, too, is angry with the decision to drop the case.

"She was victimized by (her alleged assailant), and now she's been victimized by the system," Mike Lee said.

Kristi Pettit, Grand Forks municipal attorney, is chair of the local inquiry committee of the state bar -- made up of six lawyers and three nonlawyers -- that will review Lee's complaint and decide whether the investigation should go further. Naomi Lee will have about 30 minutes to make her case to the inquiry committee today.

Lee admits she acted irresponsibly that night in late October 2006, by getting very drunk and going to a stranger's house.

It ended with a police investigation, and Brian Horner, Grand Forks, was charged last year with gross sexual imposition after a police investigation into Naomi Lee's allegations of an incident in October 2006. The charge was Class A felony with a maximum sentence of 20 years in prison.

'Hot-tubbing'

Lee, who was 20 at the time, and a girlfriend were barhopping that night and ended up at Joe Black's bar in downtown Grand Forks, where they met Horner and another man who is a lifelong friend of Horner's. The men invited the women to the second man's house to "go hot-tubbing," according to court documents of statements from all four.

At the house, all four quickly shed their clothes and got in the hot tub. All four later agreed everyone had been drinking heavily. But the accounts of the two women varied from those of the men, who described Lee as less drunk than what Lee and her girlfriend described her as being, which is a key contention in the case.

Lee and her friend told police later that the two women had agreed beforehand they would not have sex with the men that night.

In the hot tub, Lee's girlfriend soon noticed Lee's head slipping under the water, so she and the two men carried Lee to the living room and put her on the couch, wrapping her in a blanket, according to the friend's statement to police.

Lee says some time later she was awakened by a slamming door and realized someone was having sex with her. The man quickly got up and left, and she didn't really see who it was, Lee said. Still very drunk, she walked home, wearing only a jacket, to her apartment less than a block away.

Unable to unlock her door, Lee knocked on the door of a neighbor. The woman, alarmed at Lee's appearance and condition, called police. A "rape kit" was administered to Lee at Altru Hospital, but it was later determined no evidence of sexual assault was found in the examination.

The next day, Lee and her girlfriend, who had spent the night with Horner's friend, determined it was Horner who had been having sex with her. Police interviews of the four people, plus a third man who also lived in the house, were conducted in the days and weeks after the incident. In early 2007, police forwarded their investigation to Welte's office, which charged Horner.

The interview

During an interview in the police station with Lt. Jim Vigness in January 2007, Horner, who now is 30, said Lee had consented to have sex with him but acknowledged under Vigness' questioning that he knew she was too drunk to give consent. In two "pretext" telephone calls set up by police to sting Horner, Lee asked him why he had sex with her when she was passed out on the couch. Horner said, according to the court transcripts of the telephone calls, that Lee was awake -- "your eyes were open" -- and that she had given consent. He apologized in general terms several times.

During pretrial motions late last year, Horner's attorney moved to have his statements to Vigness thrown out because he had not been read his Miranda rights. Vigness had asked Horner if he was there voluntarily for the interview and told him he was free to leave. But Horner said later he felt intimidated and coerced by

Vigness and that the detective put words in his mouth.

State District Judge Joel Medd ruled in late October that Horner's statements to Vigness were inadmissible at trial because he had felt he was in custody and therefore should have been given a Miranda warning. Prosecutor Larson then decided the case, without Horner's statement to Vigness, was not winnable and asked Medd to dismiss the charges, which he did.

In a letter to Cameron Sillers, a Langdon, N.D., attorney tabbed by Pettit to lead today's inquiry, Larson explained she had been honest with Lee and Lee's mother last fall in explaining to them "that the case did not have sufficient evidence without Mr. Horner's statement."

"I appreciate Ms. Lee's concern with the outcome of her case," Larson said in the letter to Sillers, a copy of which Lee provided to the Herald. "I believed, and still believe, that Ms. Lee was victimized in a terrible way. However, as a prosecutor, I used my discretion in a reasonable and fair manner to determine if the evidence in this case was of such nature that the costs outweigh the benefits of having a trial. I was not and am still not concerned with a win-loss record. My concern was presenting this case to a jury and having Ms. Lee subject to cross-examination considering the facts we had in the case."

Larson said the law under which Horner was charged required proving he engaged in sex with Lee "when he knew that Ms. Lee was unaware that the sexual act was being committed upon her. Proving those elements would not have been easy even with Mr. Horner's statement to Detective Vigness. After suppression of that statement, I believe it would have been virtually impossible to prove the case. My decision to dismiss this case prevented Ms. Lee's character and choices that evening from being attacked in a public fashion by the defendant, his friends, and defense counsel."

Going public

Lee said she was going public with her complaint against Larson and Welte, as well as a formal complaint she has lodged against Judge Medd with the state supreme court's disciplary body, because she feels let down by the system. The state Judicial Conduct Commission wrote Lee in December saying her complaint against Medd "will be evaluated."

Lee told the Herald, "I want Horner prosecuted to the fullest extent of the law."

In a letter to Pettit, she elaborated on her frustration.

"I have been a victim of a violent crime. The prosecution has failed to perform and neglected their duties. I think about what happened on a daily basis. My life has changed dramatically. The defendant took my life and shredded my inner self. I cry late at night. I have nightmares. I failed that semester at school, I lost my job, and I don't feel the same emotionally. It's not only affected me but my family as well, both emotionally and financially."

The decision of the inquiry committee about Lee's complaint against the prosecutors may not be made public.

Lee says whatever happens, she plans to sue Horner for damages and her father has contacted an attorney to represent her in a civil suit.

She came forward last week after reading about rising numbers of rapes in Grand Forks, Lee said, because she wonders if many of the reported rapes get prosecuted.

Reach Lee at (701) 780-1237 or (800) 477-6572, ext. 237; e-mail him at slee@gfherald.com.