News

| November 24, 2006 8:00 PM

By JOHN "JACK" R. DOUGLAS

Boundary County Prosecuting Attorney

Re: State of Idaho v. Brian David, Boundary County Case No. Cr-2006-1639

I am the Boundary County Prosecuting Attorney. I am the attorney who handled this case for this office. In that regard, I worked the case up in this office, made the decision as to what to charge, filed it and prosecuted it at both the preliminary hearing and the sentencing hearing. I am intimately familiar with the facts of the case and how the case transpired.

I want everyone to know that in issuing this statement I am trying to not only give a complete and unvarnished account of what happened, but also am trying hard to be respectful of the victim, her father and good people in the community who have had a connection to the case. My sincerest feelings are of respect for the victim and her ordeal. My personal belief remains that she was courageous and truthful in her preliminary hearing testimony. It is absolutely not my intent to cause further pain or suffering by issuing a statement. I believe her account and am very willing to pursue the remaining justice available in the form of obtaining an appropriate order for restitution.

In an effort to clear the air about this important case, I am now offering a statement to set the record straight.

Before I do that, it is important to note why this prosecutor felt that it was important to break from our policy of not talking about cases that are pending. This case is still technically pending because there is still one thing to do - have a restitution hearing on December 29, 2006 at 9:30 a.m. at the Boundary County Courthouse in Bonners Ferry, Idaho.

Normally, attorneys are not supposed to release much information about pending cases. We do that to protect the fairness and integrity of the proceedings. In this case, there are compelling reasons to release a statement at this time. Those reasons center on the fact that this case has become a major media event and the fact that unfair attacks are being leveled against the Magistrate Judge in this case. I have examined the Idaho Rules of Professional Responsibility carefully and have reached the conclusion that a clarifying statement is allowable based on Commentary number three (3) of Rule 8.2, which provides as follows:

"To maintain the fair and independent administration of justice, lawyers are encouragedto continue traditional efforts to defend judges and courts unjustly criticized."

POLICE REPORT

A good place to start is with the facts known to the prosecutor at the time the decision was being made concerning what to charge. The facts known to me were contained in the police report prepared by Boundary County Sheriff's Deputy Caleb Watts and Chief Deputy Rich Stephens. The relevant high points are:

? There was an outdoor drinking party for juveniles and young adults on Katka Mountain in Boundary County, Idaho. The Defendant and others were there. Around 9 or 10 p.m., the victim and two friends arrived.

? The report does not state who brought the beer to the party.

? The date of the party was the evening of July 27, 2006.

? Many of the people at the alcohol party were interviewed. Some were reluctant to say much for reasons of personal loyalties to certain other participants or their own desire not to get involved or to admit they were at an illegal drinking party. Some who gave statements claimed not to have seen the event. The victim herself did not report the crime and initially gave an incomplete account of what happened.

? A walk-in report was made to the Sheriff's Office on July 28, 2006 at 4:00 p.m. by a family member of the victim. He stated that his great niece had been picked up and thrown into a fire by the man who would later become the Defendant - Brian Davis.

? About an hour later, a man purporting to be Brian Davis made a call to the Sheriff's Office. He gave his side of the story, stating that a bunch of people had been hanging out on Katka Mountain drinking beer and talking near a campfire. According to the report, Davis said that someone had made a statement around the campfire that started people talking about their heritage. At some point in the conversation, the victim (who is a juvenile) related that her mother was a Muslim and her father a Catholic, according to Davis. The report states that Davis said that someone else made a comment about her being a Jew and something to the effect about Jews being burned. Davis said he did not know who made the statement, but claimed he was not the one who started the statements about this. He did admit that he restated the comment and further admitted that he proceeded to pick up the victim and hold her over the campfire. Davis told the Sheriff's Office that the victim was kicking and he claimed that when he put her down, he stumbled and fell backward. The Defendant said to the police that the victim fell into the fire, according again to the police report.

? Davis claimed in the report that he and another person helped the victim out of the fire. That person was Kari Olson.

? Davis told the Sheriff's Office that he asked the victim if she was all right and if she needed anything. He claimed that the victim said she was all right and wanted to stay. According to Davis, she ended up staying at the campfire for another two hours and left with everyone else. There was no evidence to contradict the allegation that the victim, though burned and in pain, stayed at the scene with the others for about two more hours.

? According to the police report, the victim gave a statement that was close to Davis' story. But, the victim told the Deputy Caleb Watts that Davis was the only one to make comments about the victim supposedly being a Jew. The deputy stated in his report that the victim " … did not know for sure if getting burned was an accident or intentional." The victim told the deputy she had consumed a beer at the campfire.

? The deputy spoke to a juvenile girl, who gave a statement nearly identical to the victim's except she told the deputy that she could not tell if the victim was thrown into the fire or if it was an accident. She was clear that she believed Davis and Olson helped the victim out of the fire.

? Olson, according to the police report, claimed she overheard Davis tell others: "I threw her into the fire." To her at the time, it sounded like a brag.

? The victim was offered medical attention by some of the people present, but refused to accept a ride into town for medical assistance.

? Chief Deputy Rich Stephens then took over the investigation on August 14, 2006. He contacted the victim at her home. According to the deputy, he asked the victim what she remembered about the night she was injured. He reported in his police report that she said Davis picked her up off the ground, but was not sure if he placed her in the fire or if she stumbled into the fire after being picked up.

? Davis was unknown to the victim at the time this happened.

? Chief Deputy Stephens left a form for the victim, which she filled out. It gave her statement and listed the names of people present. She was able only to list Olson and a juvenile as being there. She did not know the defendant prior to this evening.

? The leg injuries of the victim were readily apparent to Chief Deputy Stephens, who noted the heavy bandages on her right leg and her crutches.

? The victim had seen Bonners Ferry doctor Troy Geyman, M.D. about her injuries.

? The investigation was then "closed" and forwarded to the prosecuting attorney. We then felt that more investigation was required and upon our request, Chief Deputy Stephens attempted to locate additional witnesses.

? The juveniles and adults at the party were reluctant to be identified or interviewed largely because they would be admitting criminal offenses such as underage drinking and also because of the natural tendency of friends not to want to implicate a friend or someone known to them in a criminal act. Thus, it was slow going and hard to make progress with the witnesses. This is the main reason it took a little over two months to get the case investigation completed and a charge filed. The State very much wanted more specific information about who said what to whom, the context of the conversations and how much drinking had been done. We especially desired to clarify exactly how it was the victim ended up in the fire and how she got out. We were closely examining all known evidence for evidence of a provable hate crime due to the language used and the injuries to the victim.

? The legal reasons these items were important centered on what charge should be filed. The most relevant possible charges seemed at the time to be: malicious harassment (the so-called "hate crime" statute); aggravated battery (due to the extent of the victim's injuries) and battery. Obviously, the decision of what to charge is driven by the facts of the case.

? Follow-up contacts with Olson and the previously mentioned juvenile, failed to reveal the names of more witnesses. At that point, we had done all we could to discover additional witnesses or evidence and needed to make a decision about what to file.

? In contrast, Davis provided Chief Deputy Stephens the names of others who were at the party: Jacques Desmaras, Jason Johnson and Rob Fulton. More people showed up than were originally invited to the party, so the Defendant stated there were people at the party he did not know.

? Desmaras told Chief Deputy Stephens that he had been there. He told the deputy that people were standing around the fire, joking about something. He claimed he saw Davis pick the victim up off the ground and set her down near the fire. He saw the victim lunge forward and to the side, claiming she stepped into the fire. He said that Davis and others helped the victim out of the fire.

? The deputy never was able to reach Jason Johnson. He left telephone messages for the witness, which were not returned.

? Robert Fulton said he was present at the party, but said he did not see what happened. He claimed to have been in a parked vehicle at that time.

? Fulton provided two other names: Kyle Dirks and Dean Vanalstyne. Chief Deputy Stephens called both, but never heard back from either.

? Desmaras provided a general description for Chief Deputy Stephens, who then went to Katka Mountaina and located a place where there indeed had apparently recently been a bonfire in a pullout on Boundary County Road 24. A pile of ash and the remnants of burnt wood were still visible. The scene was then photographed by the Chief Deputy.

? The police investigation was then closed once again and sent over to my office for review and charging decisions.

The reason to state this long recitation is to show what information this office had in making a charging decision and why the investigation took two (2) months. By this time, both attorneys in this office had reviewed the contents of the investigation. The Boundary County Deputy Prosecuting Attorney is Tevis Hull. Each of us independently found insufficient evidence upon which to base a so-called "hate crime" charge. I can assure everyone that we acted independently in making that determination. Both of us are veteran, experienced prosecutors and both are very concerned about filing the proper charge.

THE CHARGE - NO HATE CRIME

The police report also did not label this a hate crime and did not ask for any specific charge. We immediately realized the implications of the possibility of this being a hate crime. In Idaho, a "hate crime" is defined in Idaho Code Section 18-7902, which is called "Malicious Harassment." A copy of that code section is attached, along with 18-7903, which states the punishment range for Malicious Harassment. That punishment range is up to five (5) years in prison or a fine not to exceed $5,000.00 or by both.

In essence, Idaho Code Section 18-7902 requires the following to be proven for a hate crime to be filed and successfully prosecuted:

1. That a person be shown to have maliciously and with the specific intent to intimidate or harass another person because of that person's race, color, religion, ancestry, or national origin, to

2. Cause physical injury to another person.

There are other ways to violate the statute, but clearly this was the only one that arguably applied.

It is important to note that:

? The victim is not Jewish and that there never was a showing that Davis thought she was Jewish.

? Davis' statements were only made about Jews.

? The statements were made around a setting of alcohol drinking around a campfire among young adults and juveniles.

? Many of those present thought it was all just a joke.

? The victim initially thought it was a joke, too, and initially played along verbally.

? Defendant says it was a joke that went bad, that he is not a racist and did not intend to harm the victim.

This office concluded that 18-7902 simply did not apply to these facts. The statements of the Defendant were and are loathsome, ignorant and they offend myself, law enforcement and most of the community, but they never were directed at the victim "with the specific intent to intimidate or harass another person (the victim) because of that person's race, color, religion, ancestry, or national origin." Without that intent, no crime was committed under that statute. Judge Heise was correct as a matter of law. The victim was not Jewish and that basic fact was important as the offensive words were directed at Jews.

The crucial facts are:

? The victim was not Jewish.

? The victim initially thought the action was a joke and even joked back a little with the Defendant, prior to his act of picking her up and holding her over the fire, Her actions are completely understandable in that she clearly believed she was in no danger from what seemed a mere joke at the time, and it helps us understand the context in which the statements were made and the conduct occurred.

Again, there never was a question that this was deeply offensive behavior. The words are repulsive. If the statute were worded more broadly, perhaps it would fit as a hate crime. But the inconvenient fact is that the State must work with the law as written and not as some might wish it were. The case would have been different if the victim were actually Jewish and especially if known to be Jewish, and if we could have shown the required specific intent to intimidate or harass the victim. We did not have that proof, either at the charging function or the preliminary hearing, so no charge of malicious harassment was filed.

People need to understand and accept that law enforcement and my office did all that we could to try to find any and all evidence of a hate crime. One of the reasons the case was referred to law enforcement for further investigation was to try to locate more witnesses. In this case, despite all the effort and the research, there simply was not a hate crime. I realize that this is a case driven by emotion and a lot of misperception, but the prosecuting attorney and the Court itself must always be guided by facts and the law, not emotion.

The Honorable Magistrate Judge has come under criticism for not finding this to be a hate crime. My office and local law enforcement tried for over two months to obtain evidence supporting such a charge and finally had to conclude it did not exist. The Judge is getting a bum rap. She had only the evidence the State had available to present and we presented all that we had at the probable cause hearing and the preliminary hearing. It is time for people to accept this fact and stop expecting the Judge to find what was not there. The Judge was right not to find a hate crime under the law. I realize that there is a lot of emotion in this case and that the natural knee-jerk reaction may be to conclude the words said and the action taken constitute a "hate crime," but we have shown herein that this is not the case.

I have known of Honorable Magistrate Judge Debra Heise since the mid-1980s (though I was admittedly living in Texas for many of those years). She has always exhibited a character based on honesty, fairness and the pursuit of justice. It is very wrong and deeply mistaken to believe that she would intentionally overlook evidence of a hate crime if it were there.

I am responding now with this detailed statement largely to dispel the faulty beliefs that have arisen and to quell the rush to an untrue assessment of people and their actions. The Honorable Magistrate Judge, law enforcement and this office have all come under criticism from well-meaning people who up until now have not had access to the facts as they really are nor have they had access to the rationale of my office for its manner of filing and presenting this case.

Please be certain in knowing that had we believed a hate crime occurred, it would have been charged. The public prosecutor has to help maintain respect for the law, which in part means that we prosecute those cases that are justified and we don't file where a prosecution is not justified or does not fit the facts. I am not allowed to base my prosecutions on emotion or community sentiment. The Judge must and clearly in this case did base her decisions on her assessment of the law and the evidence. None of us would knowingly allow a hate crime to go un-prosecuted.

There has been much publicity about this case, so I believe the whole issue of the charging decision is vital. People have to know:

? Why and how we reached the decision to charge Aggravated Battery, a felony, but not a hate crime.

? Why we ruled out a hate crime.

? That if the facts warrant it, we would surely file a hate crime case under 18-7902.

? Why it took a couple of months to file the case.

One item of concern in the public debate has been to ask why it took so long to file this case. Why was such a lengthy investigation necessary? Because it took so long to complete the investigation and reach a charging decision, this led to unfortunate speculation by people who meant well, but did not have access to the facts we in law enforcement had. I am concerned that to some it may have falsely appeared that we were not protecting the victim or interested in righting a wrong. Nothing could be farther from the truth.

We were up against young adults and juveniles who in many cases did not want to give a statement and be implicated as a participant at the party, who in some cases had not seen or heard relevant evidence, and in some cases were quite concerned about the implications of getting friends into trouble. We did not have many witnesses who really were able at that time to state what really happened, and their stories differed significantly. This is usually the case where a startling event happens among a large group of people and even more so where drinking alcohol is involved. This weakens the State's case.

The victim herself originally told the investigating officer that she did not know if this was accidental or intentional or even how she got into the fire. Those facts are absolutely critical. If an accident only, then no crime was committed.

The Defendant, on the other hand, was more than willing and able to describe his version, to-wit: how he accidentally caused this incident.

We had another key factor working against us, which is that in this type of crime, it is usual for law enforcement and the prosecutor to receive conflicting stories from witnesses who all saw the event. That clearly happened here. I presented what I had.

The victim had important information, but initially was unable to present to the police how she got into the fire or who removed her from the fire.

None of those present by that time had told the police that the Defendant "threw" the victim into the fire, though one claimed to have heard the Defendant make such a statement. One juvenile girl said to the police that she could not tell if the victim was thrown into the fire or if this had been merely an accident. If an accident only (a matter merely of negligence), then there was no crime and the victim would have had only a civil claim for injuries and damages for justice. In contrast, the Defendant gave a quick and unchanging story stating that although the event happened, it was an accident. Essentially, he claimed that through his negligence while teasing the victim, she accidentally ended up in the fire.

One must always remember that the burden of proof in a criminal case is always on the State and not on the accused person. In a criminal case, the proof must be beyond a reasonable doubt to the satisfaction of 12 jurors (in a felony) and 6 jurors (in a misdemeanor). Malicious Harassment and Aggravated Battery are both felonies, requiring 12-juror unanimous approval for conviction. Simple battery, a misdemeanor, only requires the unanimous concurrence of 6 jurors.

The best evidence this prosecutor had at that time to show the required intent of the Defendant was the evidence from a juvenile who stated that she thought she overheard Davis tell others in a tone that sounded like bragging: "I threw her into the fire."

There was no question in my mind that Davis was responsible for the victim being in the fire and for her injuries, but the critical issue was whether this was a criminal offense or an act of negligence. Again, if only a matter of negligence, then there was not a crime and only a civil negligence suit would have been appropriate (through another lawyer, of course).

For the reasons stated above, this office believed and still believes that this was not a hate crime under existing Idaho law. I realize fully that there are people who feel otherwise, but I have to make my decisions on the basis of what we can prove in court and not on emotion. And, let's be clear, this was always a highly emotional case with a truly sympathetic victim who deserved whatever measure of justice we could give to her. Contrary to published reports, I believe both attorneys and the Judge clearly recognized this.

AGGRAVATED BATTERY AND BATTERY

That left two other good possibilities: Aggravated Battery and Battery. Turning our attention to them one at a time, here is the analysis of Aggravated Battery, which is violation of Idaho Code Section 18-907 (1) (a) and Idaho Code Section 18-903.

In essence, for this statute to apply, the State had to show that Davis committed a battery under Idaho Code Section 18-903 which became an aggravated battery pursuant to 18-907 (1) (a) because of the allegation that when he committed the battery, Davis caused great bodily harm, permanent disability or permanent disfigurement.

In this case, the victim sustained first and second degree burns, as well as scarring, because of being in the fire. The distinction is an important one because aggravated battery is a felony punishable according to Idaho Code Section 18-908 by imprisonment in the state prison not to exceed fifteen (15) years while conviction for battery (a misdemeanor) carries a penalty under Idaho Code Section 18-904 of up to six (6) months in jail and a fine not to exceed $1,000.00, or both.

The theory of the prosecution was that in grabbing the victim against her will, carrying her to the fire and holding her over it, all against her will, he became liable for aggravated battery because his action caused great bodily harm, permanent disability or permanent disfigurement. That consisted of the burns and the resulting scars. The State does not believe it is required that we prove the Defendant intended to burn the victim, but merely that in committing his battery he thereby caused the injuries that constitute the aggravation.

In support of this position, I point out that the relevant part of Idaho Code Section 18-907 (1) (a) provides as follows:

"A person commits aggravated battery who, in committing battery:

(a) causes great bodily harm, permanent disability or permanent disfigurement."

Nothing in that statute states or implies that the Defendant must be shown to have intended the actual injuries that occurred. When he set in motion the battery, the Defendant became responsible for the resulting injuries.

Thus it was that on October 2, 2006 the State issued a Criminal Complaint for "Aggravated Battery," and presented probable cause in front of Honorable Magistrate Judge Quentin Harden at the Boundary County Courthouse.

The gist of the allegation consists as follows:

1. That Brian Davis

2. On or about July 27, 2006

3. In Boundary County, Idaho

4. Did unlawfully and intentionally cause bodily harm upon the person of (the victim)

5. By causing great bodily harm, to wit: by picking the victim up off the ground, holding her over a campfire, and while setting the victim down, stumbling and causing her to fall into the campfire

6. Causing burns to her right thigh and lower calf, on her right buttock and on the inside of her right ankle

7. A felony violation of Idaho law.

The Honorable Magistrate Judge found probable cause, which is the standard the State has to meet to bring a criminal charge.

WHY A SUMMONS WAS ISSUED

There have been concerns about the issue of whether the Defendant should have been arrested or summoned in to court. Davis had no significant criminal record, was local to north Idaho with strong ties, and the State's case was not an overly strong one. We have already addressed the reasons in the statement earlier in discussing the investigation and what it yielded.

In a case like this, it is proper to use a summons to bring the defendant to court. This office made the decision to ask for a summons, based on Rule 4 [c] of the Idaho Criminal Rules. That rule states that a preference shall be given for a summons instead of an arrest warrant, and may consider:

(1) The residence of the defendant.

(2) The employment of the defendant.

(3) The family relationships of the defendant in the community.

(4) The past history of response of the defendant to legal process.

(5) The past criminal record of the defendant.

(6) The nature of the offense charged.

(7) Whether there is reasonable cause to believe that the defendant will flee prosecution or will fail to respond to a summons.

One must carefully note that the legal presumption in favor of issuing a summons is clear in I.C.R. 4 (above) and that the clear weight of the factors herein called for the issuance of a summons.

The Defendant is a resident of Boundary County, Idaho. I did not know him personally and did not know if he was employed. The Defendant is part of a family currently residing in this county. The Defendant had no prior criminal history and that also meant that he had no history to suggest he would not voluntarily come to court. Experience shows that the nature of the charge filed, though a felony, is not one that people normally flee from. The prosecution had no known reason to suspect this person might flee. For all of these reasons, a summons and not an arrest warrant was the right choice, so that is the decision I made.

PREPARING FOR THE PRELIMINARY HEARING

I met with the victim, some of the witnesses and carefully reviewed again all police reports, writing up the topics I would present at the preliminary hearing — as is my custom.

Since the next stage was the preliminary hearing, it is important to discuss what such a hearing is. In Idaho, there are two ways a prosecutor may charge a felony offense. He may either convene a grand jury or simply file a Criminal Complaint. If he convenes a grand jury, they hear the evidence in an abbreviated form and decide whether or not to charge a defendant with a crime. In that case, there is no right to a preliminary hearing. In the smaller Idaho counties, including ours, it has always been the accepted custom to not convene grand juries and to instead have the prosecutor file a sworn Criminal Complaint at which time usually a law enforcement officer is called to testify before a Magistrate Judge to lay out sworn facts supporting probable cause for the belief that the defendant more than likely committed the offense stated in the complaint. That was done here when Boundary County Sheriff's Office Detective Michael Naumann and myslf went before Honorable Magistrate Judge Quentin Harden on October 2, 2006 and presented sufficient facts and information to that Judge for him to issue an order finding probable cause.

The Defendant was served with a summons to appear in court and after he did so, a date for the preliminary hearing was set by the Court. In this case, that date was Friday, November 3, 2006 at 1:30 p.m. at the Boundary County Courthouse in Bonners Ferry, Idaho. Per my instructions, the witnesses were subpoenaed.

On the morning of the preliminary hearing, I met with the victim and her father. I later met with witnesses. I reviewed the case with the victim and explained to her what to expect at such a hearing. Although she had more information than was contained in her account in the police report, I found her to be credible and I believed her account despite the changes. She was a young person and had reasons to explain why her statement was somewhat changed.

At the preliminary hearing, I presented six (6) witnesses. The victim, four eyewitnesses and a medical doctor testified. The doctor testified about the injuries and the others were witnesses to the facts of the evening in question.

THE PRELIMINARY HEARING

The first witness was the Bonners Ferry medical doctor Troy Geyman, who saw the victim and treated her. He testified as follows:

? Dr. Geyman saw the victim six (6) times for the burn injuries.

? The victim had first and second degree burns. The burns were on her right lower leg and her right elbow.

? Second degree burns are likely to leave some scars. (This was important to meet the rigors of the aggravated battery statute).

? There is pain with these types of injuries, though it varies by the individual.

? The injuries were mostly healed by August 23, 2006, the last time he saw the victim.

The second witness was the victim. The most important parts to her testimony were the following:

? She was 17 at the time of the event.

? She attended a party on Katka Mountain about 10:00 p.m. on July 27, 2006.

? She attended with two friends - Brittany Winey and Kari Olson. Winey drove the three girls to the party. The main reasons to attend the party was so that Olson could visit with her boyfriend at the party and so that they could mingle and be with other people.

? When they arrived, there was a campfire and people were standing around by the fire talking. The fire was about a yard across.

? People were drinking beer and the victim had a couple. (In the earlier police investigation, she had said one beer).

? The victim began discussing with her friends about the fact that she was going to visit her mother in Spokane, Washington the next day.

? One of the victim's friends asked if the victim's mother was a Muslim. The victim said that she was.

? The Defendant asked the victim if her mother was a Muslim and she said she was and then volunteered that her father was a Catholic, and so Davis stated words to the effect that makes her a Jew.

? They continued talking for a while. Davis told her that since she was a Jew she should be thrown in the fire.

? The victim said she had said she was a Jew in a sarcastic way. She testified she thought Davis was just joking. She was not taking the comments seriously.

? Then Davis picked the victim up and she said he held her over the fire and let go. (This varied from her statement to the police where she had said he picked her up, held her over the fire, but that she did not know for sure how she got into the fire, or whether or not it was intentional or an accident).

? The victim was held by her waist with Davis' two hands. She did not consent to this touching (which is a critical issue in any battery prosecution).

? She then testified: "He (Davis) dropped me in the fire and that's the last thing I remember from the night."

? She explained that to mean: "Just let go of me - or - I don't know. He had his hands there and then I was just in the fire." She followed that up with saying she was set down in the fire, not next to the fire. (This changes the statement to the investigating officer because back then the victim was unsure how she actually got into the fire.)

? She then testified about her burn injuries to her leg and back side.

? We then admitted six (6) photographs of the burn injuries.

? She could not recall what happened after she was in the fire while at the scene.

? The victim does not believe she fell into the fire.

? She had drunk two (2) beers, but was not stumbling around. She said: "I had two beers when I first got there but I was not drunk. I wasn't stumbling around. There was no way I would have just fallen in."

? She described her pain as "severe pain." The victim said she was bedridden for a month and on crutches for a while. She said she still had some pain.

? She described having scars on her right leg, elbow and her butt.

? The victim did not know how the Defendant reacted when she was in the fire.

On cross-examination, the high points were:

? The victim reiterated that she thought the Defendant was joking about the conversation about her father and mother.

? She did not at that time feel threatened by the Defendant.

? The victim does not know who helped her out of the fire.

? She believes the act of burning her was intentional, not accidental. When asked why, the victim said because Davis never apologized and never came by to see if she was all right. She also said she heard people saying that Davis was bragging. She was sure Davis never apologized.

? Since the victim did not remember what happened after being in the fire up there, she then stated "Well he never apologized to me when I - when I was, like, able to remember."

? She then clarified the statement again to be: "Well I was talking about he never apologized after that night."

? She conceded to defense attorney Bryce Powell that she had told Deputy Sheriff Caleb Watts that she was unsure if getting burned was an accident or intentional. She explained that by saying: "Yes. At the time, though, I didn't want him to get in trouble. I was scared of being considered a rat." She then conceded she had not told the deputy the truth on that point.

? The victim said she did not recall telling law enforcement that she was not sure if she was put into the fire or whether she stumbled into it.

? The victim stated she is not Jewish.

The third witness called for the prosecution was Brittany Whiney. The main points of her testimony were:

? She went with the victim and Kari Olson to Katka Mountain on the evening in question.

? There was a party going on up there. There was also a fire at the party. It was a "medium sized fire." She estimated the fire as being four (4) feet across. It was a wood fire.

? She drank no alcohol at the party and had drunk none that day.

? She was four (4) feet away from the fire when she saw: "Um, my friend (name withheld) was dropped into the fire by Brian Davis." She saw the whole event.

? When asked what she had seen, she testified that: "Brian picked (name withheld) up and he took her over to the fire and her feet were over the fire. I'm not entirely sure if he actually dropped her or that she had just, or he slipped. Or he actually dropped her. But I know that her feet were over the fire and that she had no choice but to go into it when he dropped her."

? She went on to state that Davis had let go of her.

? The victim declined her offer to be taken home or to the hospital.

? Whiney was unsure how the victim got out of the fire: "I don't remember if someone had picked her out of it or if she herself got out of it."

? There was a conversation about the victim being Jewish. She said that the victim had said her mother was a Muslim and that that made her pretty much Jewish and then Davis said something to the effect that Jews deserved to be burned. And then he picked her up.

? Whiney said Davis' tone of voice was " … almost in a joking manner." She said the way he said it she did not think he was actually going to go through with it. "I thought it was just a joke."

? Whiney said Davis said Jews deserved to be burned and that he was going to take her to the fire.

? She did not see or hear Davis apologize.

? She felt Davis was not sorry for what he had done.

? She said she felt that way because she heard him state that he had catapulted the victim into the fire. (Her statement to the police had nothing remotely like this in it).

? She looked at the victim's legs and saw the skin was peeling away. She said also that the victim appeared to be in a lot of pain.

Whiney was then cross-examined by defense attorney Powell. The high points were:

? She claimed that Davis: "It appeared that he just dropped her straight down."

? She believes she remembers that Davis just stood there after the event.

? She does not remember who helped the victim out of the fire.

The fourth witness for the prosecution was Kari Olson. The highpoints:

? She went with Brittany Whiney and the victim to the Katka Mountain alcohol party about 10:00 p.m. on July 27, 2006.

? She described the scene about like the others. There was a fire and there were people present.

? There was alcohol present.

? She did not drink.

? She was standing right next to Davis when the conversation happened.

? She stated: "I heard him (Davis) say something about, um, burning Jews and I believe that (the victim) said something about being a Jew, but I don't remember exactly what was said."

? She said: "He (Davis) picked (the victim) up and took her over to the fire."

? She then further explained that: "I saw her pick her, or I saw him pick her up and take her over there and then he either set her down or dropped her and she fell in."

? She said the victim was going down and her feet were over a log and she landed on the log and then she was unsure if the victim just fell or what, stating: "I don't know exactly what happened."

? She believed that Davis set the victim down inside the fire. She said: "Because there was a log under her feet and that log was in the fire."

? Somebody then pulled her out of the fire and they all looked at her leg. They tried in vain to get her to go to town with them to go to the hospital, but the victim did not want to go. She does not remember who pulled her out of the fire.

? She saw burn marks and skin peeling back on the victim's burnt leg.

? No one apologized that she saw.

? She and Brittany Whiney left without the victim about fifteen (15) minutes later.

On cross-examination, she stated:

? She was not sure if the victim would have gone into the fire if she had not slipped or stumbled on the log.

? She did not recall how large the log was.

? The fire wasn't all that large she said and the log was more on the edge of the fire.

? She was not sure if Davis threw her into the fire or he just set her down on the log.

? The victim landed on her side after kind of rolling.

? She conceded the burns may have been caused by accident.

The next prosecution witness was Robert Fulton. He stated:

? He also was at the party.

? He called the fire "a little campfire."

? He said he was sitting in a car about 30 yards away facing another direction and did not see what happened. He said someone came up to the car and said some girl had just fallen into the fire. It was explained to him that Davis was kind of "messing around" and "they kinda tripped and said she fell in the fire and then he grabbed her out."

? Fulton said the victim at the time didn't act like it was a really big deal. He saw she had a really bad leg burn.

? He remembers a lot of people showing sympathy for the victim at the scene.

? Fulton said on cross-examination that he had known Davis most of his life and did not consider Davis to be violent or intolerant of races or religions.

The final prosecution witness was Kyle Dirks. He testified that:

? He also was up on Katka Mountain at the party.

? He knows both the victim and the Defendant.

? He did not see what happened. He said: "I didn't see it. I was sitting in my truck listening to music facing another direction."

? On cross-examination, Dirks said everyone heard different versions of what actually happened and the truth was unclear.

At the end of the six (6) witnesses, the State rested.

IN CHAMBERS

The Judge then asked the two attorneys to meet with her in chambers. People have endlessly speculated about what happened in chambers. I was there and so were two (2) other people: Honorable Magistrate Judge Debra Heise and defense attorney Bryce Powell.

At no time did the Judge try to force a settlement. I mention that because I have been asked that. The Judge never said that if we did not reduce the charge the case would be dismissed. She did, however, indicate some concerns she had about the case and the belief that the case might not be strong enough for a felony bind-over. She suggested that the parties might want to consider a reduction to the charge of battery, with the certainty of conviction that would bring and with restitution being a key component of the sentence and judgment that would be entered. In this case, restitution is vital as the victim has suffered significant bills and injuries.

Judge Heise never said "boys will be boys." I did not tell anyone that she said those words.

Despite the rhetoric that has occurred since the event, this was a better deal than appears at first blush. I say that because the above recitation of the preliminary hearing testimony shows to a trained professional that the prosecution had far from a certain case. Here are some of the problems with the State's case:

1. The victim changed her story from the version told to the officer to the testimony she gave at the hearing. I certainly believe her testimony and understand why and how her story to the police initially was a little untrue, but the legal fact is that once that happened, her testimony was "impeached" and thus weakened. I cannot help that and would remind people that this is the law everywhere I am aware of. If your story changes - no matter the reason - the defense attorney will impeach you with the change in testimony. That always weakens the testimony of the person testifying. It was critical here because she claimed at the hearing to know he put her in the fire whereas when speaking with the officer earlier when the matter was more fresh in her mind, she was unsure how she got into the fire and unsure if the event was intentional or accidental.

2. The other witnesses either did not see anything (Dirks and Fulton) or they gave accounts that differed from other testimony and generally characterized the event as Davis joking around and then being unsure if he intentionally put her into the fire or she fell into the fire. Again, it makes all the difference between having a serious criminal offense or a case of negligence (which would be redressed only on a civil suit and not in the criminal courts).

3. Brittany Whiney testified that she was unsure if Davis dropped the victim into the fire (an intentional act) or if he or she just slipped (an accidental act).

4. There were conversations about "Jews," but no one suggested that the victim was Jewish (she said she was not) or that Davis in fact actually thought she was Jewish. The witnesses characterized the conversation about Jews as being a joke. It sounded to them at the time and prior to the victim landing in the fire, that this was merely a joke by the Defendant.

5. Brittany Whiney did say that she later on heard the Defendant state that he had "catapulted" the victim into the fire, but did not use that term weeks earlier when interviewed by the police. Again, changed recitals of the facts are always subject to discreditation through impeachment. That's the law and people have to accept that the Judge and attorneys understood that.

SETTLEMENT

I then had the task of going to meet with the victim, her father and concerned community citizens in the jury room to see if an agreement could be hammered out. To do that, I had to answer their concerns and it was imperative that I respectfully discuss the state of the evidence and what was said in chambers. Emotion ran high. They wanted to know the options and the likelihood of what would happen if we settled through a plea bargain or kept going and ran the risk the case would not be bound over. I believed there was a strong likelihood the case would not be bound over based on what I heard, and I told them so.

At all times I tried to convey the sentiment that we were all respectful of the victim and that the Judge was trying to see if the parties could agree on a deal that would provide a conviction to something and obtain for her a certain restitution. This was a difficult meeting as I had the task of trying to explain weaknesses in the case in an emotionally-charged setting, to lay people who were well-intentioned but who did not have my 28 years of experience, or the over 20 years of experience the Judge had on the bench or the many years of experience the defense attorney had.

At no time did I ever directly quote the Judge. I did not state that she said "boys will be boys." She did not in fact make that statement. I did discuss with them that we had talked about boys and young men and that things can happen when people get to drinking around a campfire. The Judge was not disrespectful of the victim and at no time did I see any of the three professionals treat the case light heartedly. I have always considered this an important case and have been committed to try to help get justice from the very beginning.

Like other events that happened in this case, people tend to hear things differently. Time and again it has seemed to me that versions differ as to what has been stated or done, both at the scene of the crime and in the attempt to settle it. But I want to assure everyone that no one was coerced into settling and that had the victim said to go ahead and take our chances, I would have agreed and let the court rule how it would. I believed then and now that settlement was the best course in this case, and I told the people assembled that. In an uncertain situation like this where the case may get dismissed, I certainly believe that getting half a loaf is better than nothing and that discretion is often the better part of valor.

Unfortunately, no tape recording was made of this meeting. This I hope to address in future cases in order to avoid misunderstandings. I will order the necessary equipment so that the next time we have a delicate negotiation, a recording will be made and then all that is said and done will be certain to one and all.

It is important to note that the Judge was professional in chambers and certainly was only trying to see if there could be a settlement that would satisfy both sides. Nothing she said or that any of us said was disrespectful or demeaning to anyone. No one intended for the victim to feel further hurt or that she did not get justice. Again, the court and my office must be guided by the facts and the law and not mere emotion. When people are hurting, this can be a difficult thing to accept. That is what appears to have happened here.

After two lengthy discussions with the room of people, we all left and the victim met with her father for a few minutes. I was then advised by them that they would accept this deal, although clearly they were disappointed. It is not unusual for people to be disappointed by the terms of a plea bargain, so I did not foresee the controversy that developed.

I did not comment to the press afterward because the case was still pending. I am breaking that silence now in order to set the record straight. I am concerned that probably with the best of intentions, people have misconstrued what happened. People have to know that the Judge, the lawyers and law enforcement all took this case very seriously and handled it appropriately.