The Montana Supreme Court has ruled that Edward Ghostbear, who is being held in Montana State Prison for allegedly raping a 7-year-old girl in Havre, will get a new trial.
The judge who presided over the trial in Havre, former 12th Judicial District Judge Dan Boucher, made a legal mistake by not excusing a potential juror who raised serious doubts about whether she could be impartial, the high court said.
Ghostbear, born in 1977, is serving a five-year sentence for felony sexual assault handed down by Boucher in September 2017. He is accused of repeatedly raping the daughter of his then-girlfriend in the basement of a former Havre church in 2011.
In its opinion issued Tuesday, the Supreme Court said the juror’s statements during jury selection “evinced an inability to act with impartiality and without prejudice toward Ghostbear.” The juror “openly and continually stated…that she was inclined to believe a child’s testimony regarding sexual abuse because the child had come as far as testifying in court.”
When Ghostbear’s attorney asked the judge to remove “Juror G.,” Boucher denied the request. Ghostbear then had to use one of his peremptory challenges to remove the juror, an option that allows attorneys to have potential jurors removed without reason. Having to use one of those challenges to remove Juror G. gave Ghostbear one less peremptory challenge.
In response to the appeal, the Attorney General’s office argued against the validity of this argument. First, the juror was dismissed nonetheless. Also, although lawyers are usually limited to six peremptory challenges, Boucher allowed eight peremptory challenges in this case.
Ghostbear appealed his sentence to the Supreme Court in March 2019.
The parties involved, including the Hill County attorney, have 15 days to ask the court to reconsider its decision. If that doesn’t happen, the case will be sent back to Hill County, where it originally was filed.
The justices outlined the exchange they believe to be evidence of Boucher’s mistake:
Ghostbear’s attorney discussed with the prospective jurors whether they would be inclined to believe a child witness’s testimony regarding sexual abuse. One person, Juror G., said she believed a child witness who is “coming this far” to testify in court should be believed.
Ghostbear’s attorney asked the juror, “The very fact that she sits in the chair, comes to court, you’re going to believe her, aren’t you?”
“Yes,” the juror replied.
She then was asked, “If you heard her — the testimony and she said, she went through the trouble coming, you would believe her?”
“Yes,” the juror responded.
Ghostbear’s attorney then moved to remove the juror.
During questioning by the prosecutor, the juror reiterated her position that she was inclined to believe the child’s testimony, but stated her belief “may change depending on what [she] heard.”
Boucher then asked the juror if her “presumption is so strong that a child witness must be believed, that you could not be fair to the Defendant or the State in this case?”
“I would try to be fair, but I don’t think I could do it,” the juror responded.
Boucher then asked the juror if her response was “based on [her] feeling that the child witness is telling the truth,” to which she replied yes.
Boucher told the juror she must listen to all the evidence and the court’s instructions before making a decision.
The juror said, “It would be hard. I’m sorry. It would be hard to — I can listen to all of it but I’m not sure if that by itself would cause me to convict.”
The justices’ opinion said Boucher abused his discretion because the juror’s statement during jury selection raised “serious doubts about the juror’s ability to be fair and actual.”
Ghostbear has maintained his innocence throughout the case.
READ MORE ON THIS CASE:
- Attorney General Opposes New Ghostbear Trial
- Two Roads To Freedom: A Man Convicted Of Rape In Havre Maintains His Innocence
Editor’s note: This story has been updated.
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Write to Paul Dragu at firstname.lastname@example.org