The attorney of a former Grand Forks teacher accused of having sex with a student will get to interview the victim ahead of trial, but the defendant will not be allowed in the room during the deposition.
Grand Forks District Judge John Thelen ruled in favor Thursday of defense attorney Robert Hoy, who is representing former Central High School teacher James Patrick Whalen in the case. Whalen, 41, has been charged with three counts of corruption or solicitation of minors and one count of sexual assault, all felonies, after a high school-aged student told investigators they had sex multiple times last winter.
The student has been interviewed four times for a total of five hours by school officials and law enforcement, said Haley Wamstad, a Grand Forks County assistant state's attorney who is prosecuting the case. The defense filed a motion to depose the victim for discovery, but Wamstad asked Thelen to quash the subpoena, stating the court has an obligation, according to the Child Victim and Witness Fair Treatment Standards Act, to protect the victim from repeated interviews that could cause "significant distress."
"Essentially, the defendant is asking the court to allow Mr. Hoy to question this juvenile victim about the details of her sexual relationship with a teacher before her parents, the defendant, Mr. Hoy and other strangers," Wamstad said. "If that isn't something that will unreasonably annoy, embarrass ... or cause undue burden to a victim of a sexual offense, I don't know what is."
The mother of the victim also objected to the deposition in an affidavit filed Aug. 8, stating her child did not want to be deposed by the defense.
"(M)y child has expressed fear and anxiety about the defendant's presence at a deposition," the mother wrote in the affidavit, adding "since this matter was revealed to authorities, it has caused significant stress to my child and our family."
The Herald does not typically identify victims of sex crimes unless the victim chooses to make his or her name public.
Hoy argued the defense has not had the opportunity to interview the student and an action that has not happened cannot be repeated. He also questioned why the state was concerned with interviews causing the victim stress when the defense wanted to interview her. The state's argument would have "held more water" if law enforcement agencies had collaborated with school officials to interview the victim once instead of four times, he said.
"Nowhere in the record is the state's outrage or concern expressed about law enforcement interviewing her (four) separate times for up to five hours and causing her stress of concern or emotional harm," Hoy said. "Apparently, that's OK. They can do it as much as they want, apparently according to the state's view of this."
If necessary, Hoy said, the victim could take breaks and have a "support person" present during the deposition.
Thelen agreed and ordered conditions for the deposition, including that Whalen not be present, the deposition be limited to three hours and the defense not cross-examine the victim.
This isn't Hoy's first time defending a teacher who was accused of having sex with a student. Hoy successfully defended Fargo-area teacher Aaron Knodel when he faced five corruption or solicitation of minors, all felonies, last year in Cass County District Court after investigators said he had sexual relations with a 17-year-old student in 2009. Knodel, who returned to teach at Sheyenne High School after an April trial, was acquitted on three counts and the other two were dismissed.
Hoy is also defending Marissa Ashley Deslauriers, a former Bottineau (N.D.) High School teacher facing two sexual assault charges and one count of corruption or solicitation of minors, all felonies, after investigators accused her of engaging in sexual acts with at least two high school-aged boys last winter. A three-day trial is scheduled to begin Sept. 14.
Warrant in Minnesota
In a separate but related case, Whalen faces a third-degree felony criminal sexual conduct charge in Polk County District Court. The victim in the North Dakota case told police the two had sex in early January near Crookston. That charge was filed July 20, just as attorneys in North Dakota are preparing for trial in Grand Forks County, which may happen late fall.
Whalen failed to appear on the Minnesota charge Tuesday. Hoy sent a letter to the Polk County Attorney's office stating he had advised his client not to appear on the charge until court proceedings in Grand Forks County are completed.
"If we voluntarily appear (in Polk County), I have no assurances what the court would do with bail," he said, adding the bail could interfere with court proceedings in North Dakota. "They may set bail, and he may not be able to bail out."
Polk County issued a warrant for Whalen's arrest. That made it possible for any law enforcement officer to take Whalen into custody so he could be transported to Minnesota to face that charge, Wamstad said.
"It's the state's understanding that there is a deputy intending on arresting Mr. Whalen after court today," she said.
Typically, extradition in North Dakota cannot proceed until prosecutors file a motion with the court, which usually doesn't happen until an arrest is performed.
But Whalen offered to surrender himself voluntarily so Thelen could set bond and an extradition hearing, Hoy said. Polk County suggested Whalen be held without bond until an extradition hearing, but Thelen set a $5,000 surety bond after Hoy assured the court Whalen intended to face the Minnesota charge.
Hoy said it's likely North Dakota won't extradite Whalen to Minnesota until after the North Dakota cases are resolved.