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Former Grand Forks teacher accused of having sex with student charged in Minnesota

CROOKSTON--A former Grand Forks teacher charged with having sexual relationships with a student in North Dakota faces similar charges in Minnesota for alleged encounters with the same student there.

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James Patrick Whalen enters elevator after his first court apperance on Thursday, March 3, 2016. Jesse Trelstad/ Grand Forks Herald

CROOKSTON-A former Grand Forks teacher charged with having sexual relationships with a student in North Dakota faces similar charges in Minnesota for alleged encounters with the same student there.

James Patrick Whalen, 41, will appear Tuesday in Polk County District Court on third-degree criminal sexual conduct, a felony that carries a maximum sentence of 15 years in prison and a fine of $30,000.

The charges, filed July 20, come after the Polk County Sheriff's Office began investigating Whalen after a student between the ages of 16 and 18 said she and Whalen had sex sometime in early January near Crookston in Whalen's Ford Expedition. The investigation was initiated after Grand Forks' Central High School administrators received reports of Whalen and the student exchanging multiple text messages with each other.

Whalen admitted to administrators there were "inappropriate things going on between himself" and the student, adding the two had "clicked" with each other and the relationship made him feel good, according to court documents. He also admitted to having sex with the victim, according to the Polk County criminal complaint.

The complaint details several alleged encounters between Whalen and the student, including driving to Kellys Slough west of Grand Forks to have sex and watch the sun set.

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In the Polk County charges, investigators said Whalen picked the student up in December so they could drive into Minnesota to watch the stars in a park. There, Whalen sexually touched her, according to the criminal complaint.

In a second alleged encounter, Whalen drove the victim after Christmas break to a remote area near Crookston, where the student said Whalen wanted to show her a church, according to court documents. When they discovered the church was locked, they drove to a remote dirt road, where the victim told investigators they had sex, which was planned in advance, according to court documents.

Whalen, who resigned March 1, was charged the same day in Grand Forks District Court with two counts of corruption or solicitation of minors after the same student said they had sexual relations, including intercourse at Central High School and at his home. He was later charged with additional counts of corruption or solicitation of minors and sexual assault, but the two cases will be combined for trial.

DNA and Whalen's rights

On the North Dakota side, a Friday hearing could decide if the defense will get to interview the victim before Whalen's trial and whether the state can conduct tests on a hair found on a blanket seized from his car.

Whalen's attorney, Robert Hoy, responded to the state's argument that his client's right to confront his accuser is a trial right. The prosecution previously argued the court must protect the victim from repeated interviews that could be "inherently traumatic" by preventing the defense from deposing the victim outside of court.

Despite having access to hours of interviews from the victim, Hoy argued the state's approach violates Whalen's rights to confront the victim and due process.

The victim has not objected to the defense's subpoena for deposition, and though the state objects, it has not proven the deposition will "unreasonably annoy, embarrass, oppress or cause harm" to the victim, Hoy argued. Whalen's rights extend beyond the trial, Hoy said, adding since the victim's testimony is primary evidence that could be used against Whalen in trial, the court should not cut him off from interviewing the student.

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Hoy also argued the deposition is not repetitive, as the state argues. The defense has yet to interview the victim, and by definition, the deposition cannot be described as repetitive, Hoy said in his response.

"While the state claims the psychological impact of repetitive interviews 'is not debatable,' it clearly did not think this was true when school officials and law enforcement interviews (the student) the first four times," Hoy said in the response. "The state would have the court believe no psychological impact was at stake during the first four 'lengthy and comprehensive interviews' by school officials and law enforcement, but it is 'not debatable' that a single deposition by the defendant would produce trauma and psychological harm because it is too repetitive based on the earlier interviews."

The state also wants to test a hair that was found in Whalen's car, but possible destruction of the hair would prevent the defense from testing it, Hoy argued. Whalen has the right to defend himself against the state by independently testing the evidence, Hoy wrote in a motion against the testing filed May 26. He added the state could try to preserve some of the hair for the defense.

The state argues there are other hairs the defense could test, adding testing the hair would not violate Whalen's rights because the due process clause does not require the state to preserve evidence subjected to testing.

"Rather, the (U.S. Supreme Court) reasoned that the evidence submitted at trial is the testing results rather than the actual sample tested," Assistant State's Attorney Haley Wamstad argued in a response.

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