If District Attorney Paul Gallegos has his way, David Gundersen's ex-wife will testify when the former Blue Lake police chief stands trial for allegedly raping his current wife with the use of an intoxicant.
Superior Court Judge Bruce Watson is expected to hear arguments Friday on a motion Gallegos filed with the court seeking to admit testimony of alleged sexual offenses against his former wife.
How Watson rules could indicate whether he will allow evidence to be presented during the trial regarding an ex-girlfriend's accusations that Gundersen forcibly raped her at gunpoint while the two were living together in 1999.
Those accusations are the basis of a forcible rape charge filed against Gundersen.
On Monday, Watson ruled the forcible rape charge will be tried separately from 30 other charges Gundersen faces, which include 24 counts of spousal rape. It remains unclear whether Watson will allow Gundersen's ex-girlfriend, Jane Doe 2, to testify when Gundersen stands trial for allegedly raping his current wife, Jane Doe 1.
Jury selection is underway in Gundersen's first trial, in which he is expected to face the spousal rape charges and six other counts, including possessing a submachine gun and a pistol with an attached silencer. Gundersen has pleaded not guilty to all charges and remains held in the Humboldt County jail on $1.25 million bail.
In his motion to make the testimony of Gundersen's ex-wife admissible, Gallegos cites California Evidence Code Section 1108, which essentially states that in cases where the defendant is accused of a sexual offense, evidence of prior sexual offenses can be admissible if the judge finds its probative value to be higher than its risk of prejudicing the jury.
Generally, that's an uphill battle for the prosecutor, according to University of California Hastings School of Law professor David Levine.
He said “evidence of prior bad acts,” as it is often called, is generally ruled inadmissible for the simple reason that just because somebody did something in the past doesn't mean they did it again, or will do it again. So, Levine said, in most cases, the probative value of such evidence is low, while the risk of prejudice is high.
But, Levine said there are some exceptions.
If someone was convicted of committing a string of bank robberies while wearing a red hat, and is now standing trial for a bank robbery in which the perpetrator wore a red hat, a judge would be more likely to make admissible the “evidence of prior bad acts” because they fit a paradigm or established method of operation.
In this case, Gundersen's ex-wife has made accusations -- first during her and Gundersen's divorce proceedings in 1999 and later to District Attorney's Office investigators looking into the current case -- that Gundersen put sleeping drugs in her food or drink so she couldn't resist his unwanted sexual demands.
She later told DA investigators she felt Gundersen may have raped her one to five times while she was drugged.
Gundersen denied the accusations made during the divorce proceedings to Humboldt County Court Investigator John Buffington, who later wrote in a report: “As to the drugging of Mrs. Gundersen, it is difficult to know who is lying to me. But it is clear that one of the two is lying to me.”
Whether those allegations are enough to establish a paradigm or an established method of operation will be up to Watson.
”It really is a judgment call on the part of the judge,” Levine said. “The general rule is that it won't come in. But, there are exceptions and it really depends on the closeness of the fit between the two circumstances.”
As to Watson's ruling Monday to split the charges concerning Gundersen's ex-girlfriend from those concerning his current wife, Levine said it is not unusual or surprising because the counts contain different types of alleged offenses reportedly committed under different circumstances.
Gundersen's defense attorney Russell Clanton agreed. He said Watson made a very careful analysis of the law and came to the right decision. Gallegos simply said he had to move on with his case.
”We have to accept rulings from the court, move on and plan accordingly, so that's exactly what we're going to do,” Gallegos said.
Gallegos wouldn't comment as to whether he would file a motion to make Gundersen's ex-girlfriend's testimony regarding the alleged forcible rape admissible during the spousal rape trial.
Levine said it would be unusual for a judge to grant such a motion after ruling to sever the counts, but it was up to the discretion of the judge and the possibility could not be ruled out.
”This isn't the usual case -- that's for sure,” he said.
Thadeus Greenson/The Times-Standard
Article Launched: 07/23/2008 01:27:55 AM PDT
Related coverage, with links
☛ TS Blue Lake police chief arrested for alleged rape 2/9/08
☛ ER Blue Lake Police Chief arrested on suspicion of rape 2/9/08
☛ TS DA: Allegations stem back a couple years, may have been continual occurrence 2/10/08
☛ ER Blue Lake police chief accused of multiple assaults 2/11/08
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☛ KMUD Daniel Mintz interview with Gallegos. Click on KMUD Local News, 6:00 pm edition, Monday, February 11, 2008 6:00 pm
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☛ TS Attorney: Gundersen claims 'false'
☛ TS Gallegos sticks to his guns regarding investigation into Blue Lake police chief
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☛ ER Blue Lake residents speak out against police chief 2/13/08
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☛ TS In tense meeting, council puts off action on jailed police chief 2/13/08
☛ TS Gundersen hit with 12 counts of rape
☛ TS Gundersen pleads not guilty to 12 rape charges 2/14/08
☛ ER Police Chief denied release from jail — $500,000 bail stands 2/15/08
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☛ MP Rape Case Proceeds Against Blue Lake Police Chief 2/19/08
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☛ TS Blue Lake changed policy to allow Gundersen, wife to work together 2/28/08
☛ ER Gundersen’s attorney: Gallegos to face difficulty upholding burden of proof2/29/08
☛ TS Court documents shed light on Gundersen case 2/29/08
☛ TS Gundersen's lawyer: A 'witch hunt' 2/29/08
☛ ER Judge more than doubles Gundersen’s bail to $1,250,000 3/1/08
☛ TS Judge raises Gundersen's bail to $1.25 million 3/1/08
☛ TS Gundersen, alleged second victim were living together, report says3/4/08
☛ TS Investigation report: Gundersen's ex-wife also alleges drugging, rape 3/4/08
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☛ ER DA mistake violates victims’ rights 3/14/08
☛ TS Gundersen hearing pushed to April 3/14/08
☛ TS An evolution of law: Spousal rape recently prosecutable 3/23/08
☛ TS Blue Lake ends Gundersen's employment 4/10/08
☛ TS Gundersen's wife gets immunity 4/11/08
☛ TS Gundersen preliminary hearing continued 4/12/08
☛; ER Gundersen hearing moved ahead for third time 4/12/08
☛; TS Blue Lake's remaining officers placed on leave 4/15/08
☛ TS BLPD evidence storage facility burgled 4/15/08
☛ TS Gundersen alleged rape victim testifies in hearing 4/21/08
☛; ER First Witness Testifies at Gundersen's hearing 4/22/08
☛ ER Log of the Testimony, Gundersen's hearing 4/22/08
☛ TS 'Jane Doe 2' tells court of rape by Blue Lake chief 4/22/08
☛ TS EPD reportedly didn't follow up on 1999 rape report 4/22/08
☛ ER Both “Jane Does” testify, immunity deals criticized 4/23/08
☛; TS Defense questions alleged rape victim 4/23/08
☛; ER Jane Doe “felt coerced” into making statements 4/24/08
☛ ER Gundersen's hearing transcripts 4/24/08
☛ TS Key witness in Gundersen case says testimony coerced 4/24/08
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LEADUP TO THE TRIAL
☛; TS Gundersen attorney wants change of venue 7/2/08
☛ TS Gundersen's attorney seeks to dismiss charges 7/3/08
☛ TS Judge hears motion to dismiss Gundersen charges 7/10/8
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☛; ER Two charges against Gundersen dismissed 7/15/08
☛ TS Judge dismisses three charges facing Gundersen 7/15/08
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31 counts, including 24 charges of spousal rape with the use of an intoxicant, forcible rape of a second victim with a firearm enhancement, attempting to dissuade a witness, violating a court order and possessing a submachine gun and a pistol with an attached silencer and reduces it to one count of spousal rape and another of forcibly raping a second victim.
The TS reports that Gundersen, who is facing 28 felony charges, turned down a plea deal that could have landed him in prison for anywhere from nine to 26 years, attorneys said in court Tuesday.
”We rejected it in its entirety,” Gundersen's attorney Russell Clanton said of the deal, in which Gundersen would have pleaded guilty to one count of spousal rape and another of forcibly raping a second victim. “Our position is that the defendant has no criminal liability.”
☛ ER Juror questionnaire ready as selection process begins 7/16/08
☛ TS Jury selection underway in Gundersen case 7/17/08
☛ ER Former police chief now faces two trials 7/22/08
☛ TS Gallegos asking for Gundersen's ex-wife to take stand 7/23/08
☛ Heraldo - Blue Lake Police Chief Arrested for Rape
☛ Mirror - Police chief denies spousal rape accusation, says two were never married 5/10/08
☛ The Wasp - Gallegos the Sneak 5/13/08
☛ The Wasp = Correction/Update
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☛ Mirror - Blue Lake slips motto contest into city council agenda 3/5/08
☛ Mirror - Gallegos hires Mandrake the Magician to erase memories of alleged rape victims’ names 3/18/08
☛ Mirror - At this point, we would definitely consider a name change 3/26/08
☛ Blue Lake cans Chief Gundersen 4/9/08
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☛ Mirror - Confirmed: Gundersen attorney desperately seeking venue change 7/7/08
☛; ER Gundersen: No stranger to bumpy roads The story of Gundersen's previous arrest and its outcome.
☛ Legal Defense Fund http://www.porac.org/ldf/articles/february%201%201998.html
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First posted 2/16/08 Updated on an ongoing basis