State won’t appeal dismissal of rape charges in case of recorded attorney-client calls

September 26, 2018

LINCOLN — Nebraska prosecutors will not appeal the recent dismissal of child rape charges against a registered sex offender whose jailhouse phone calls to an attorney were recorded by authorities.

In a related development, the lead investigator in the case no longer works for the Webster County Sheriff’s Office in Red Cloud, an official confirmed Tuesday.

The investigation stemmed from allegations by a young woman from Colorado who said she was brutally raped in 2013 while visiting family in Nebraska. The woman, who was 15 at the time, said she had been handcuffed to a bed and was left bleeding with a vaginal tear that extended to her inner thigh.

On Sept. 7, Webster County District Judge Stephen Illingworth ordered the charges dismissed after learning that the sheriff’s investigator had downloaded digital recordings of phone calls between the defendant and his lawyer. Accessing the privileged conversations violated the defendant’s constitutional right to be represented by legal counsel, the judge said.

Hebron defense lawyer Ben Murray filed the motion to dismiss on behalf of his client.

Murray also showed the judge comments made by the investigator, Sgt. Dianne Nichols, who apparently didn’t know she was being videotaped by a jail surveillance camera while she was interviewing a witness in the case.

“I’m bound and determined to take the little f----- down,” she said, referring to the accused. Later, she added, “That’s why I’m kind of skirting a few things this time.”

Nichols testified at a pretrial hearing that she stopped listening to the phone call recordings when she realized they involved attorney-client conversations. She insisted she did not hear any of the defendant’s trial strategy.

“How does the court know if this is true?” the judge said in his ruling. “The only evidence the court has to gauge her credibility is her words and actions. Her statements ... clearly show she was willing to cross the line to convict the defendant.”

The judge also said he intended his ruling to discourage future law enforcement “intrusions of this fundamental constitutional right.” Murray has discovered law enforcement recordings of calls with his clients in two other cases as well.

The World-Herald has not named the 54-year-old man accused of the sexual assault because he is related to the accuser. Had he been convicted, he faced a maximum sentence of life in prison.

Instead, he walked out of jail on Sept. 7.

The Attorney General’s Office assisted the local prosecutor in the case. Suzanne Gage, spokeswoman for Attorney General Doug Peterson, said the office decided against appealing the judge’s ruling.

Webster County Sheriff Troy Schmitz said Tuesday that Nichols no longer works for his department. He declined to offer any further details, calling it an personnel matter.

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