Trial delayed after angry scene Friday in courtroom

Sep 24, 2017 By Daniel Bendtsen, Staff Writer

It started with a grown man flicking the breast of a 13-year-old girl.

It ended with attorneys storming out of Fremont County's district courtroom Friday, spewing profanities in the courthouse's halls as their months-long trial preparation in the case began to crumble.

The defendant: 37-year-old Donald Burnett of Lander.

The charge: third-degree sexual abuse of a minor, a felony that allows a person to be imprisoned for up to 15 years.

That split-second touch wasn't exactly an innocuous action, but as county prosecutor Dan Stebner put it, it's certainly "less egregious than many of cases" that come across the desk of the county attorney's office.

"It's not a terribly complicated case," Stebner said.

Unexpected trial

But of the numerous of pedophilia cases that have been opened in Fremont County this year, Burnett's was the only one scheduled for trial.

It would have been the first felony trial in the county since James Morrison was acquitted of second-degree murder a year ago.

"To be perfectly honest, I expected this case to settle," said Jon Gerard, Burnett's public defender.

But it didn't, and on Friday morning, everyone was ready for trial in three days' time. And unlike other cases that sometimes see plea deals on the eve of trial, everyone in the courthouse was actually expecting a trial come Monday morning -- until the unexpected finally happened.


Gerard updated his pre-trial memorandum that morning.

It included his intent to present evidence that would have been a complete game-changer: Donald Burnett has Klinefelter syndrome.

This genetic mutation creates an extra X chromosome in men and has a number of distinct characteristics for those it afflicts: Low libido, sterility, high estrogen, impaired mental abilities, and a childlike personality that pervades into adulthood.

At the impending trial, Burnett's father now planned to testify to his son's diagnosis at age 6 and how he continued to "behave like a child" throughout adulthood.

"That's probably how he ended up in this circumstance," Gerard said.

The attorney also said Randy Lutterman, a detective for the Lander Police Department, "took advantage of" Burnett's "developmentally cognitive impairments" during investigation.

That evidence is so significant because, in order to convict Burnett of the sexual abuse charge, the jury must be convinced -- beyond a reasonable doubt -- that the breast flick was a direct demonstration of sexual intent.

Gerard admitted he knew about Burnett's Klinefelter Syndrome since May, but it wasn't developed as a defense until fellow public defender Valerie Schoneberger joined his team a month ago.

"He's very friendly," Schoneberger said. "He likes to rough-house with children and they like to rough-house with him -- because he acts like a child."

Klinefelter Syndrome also has a number of physical manifestations, including breast development and reduced body hair.

Schoneberger said the syndrome gives Burnett's brain "more feminine traits."

That fact, she said, would explain some of his behavior after his arrest, including threats of suicide.

Those threats, she said, should not be considered a signs of remorse, but of "being overly emotional and not able to control your frustrations."

When the evidence was introduced Friday morning, Stebner said he was "baffled by the substance of it, and the timing."

"Why this wasn't addressed now is beyond me," Stebner said. "(We've) lived this case since Mr. Gerard informed me that our last offer was rejected and we would proceed to trial," Stebner said. "We're ready to go."

While asking the judge to disallow the evidence, Stebner said it would simply be "not fair" for him to have to "cross-examine him based on something I pull off WebMD."

The late addition of evidence meant Stebner had no time to investigate the syndrome and call his own expert witness that could argue that Burnett's actions are not explained by the syndrome.

Schoneberger argued the evidence should be allowed under a hearsay exception: Burnett's father would only testify that his son was diagnosed and that his symptoms followed doctors expectations.

Judge fuming

But the longer Schoneberger pleaded her case, the more Judge Norman Young lost his patience over a defense he said the attorneys should have "reasonably anticipated" using.

"How are we supposed to fix this?" the judge pressed her. "How is the state supposed to rebut that? How do we solve the state's problems that you have created at 10:30 a.m. on the eve of trial?"

He refused to allow the new evidence, which he said would require both sides to have expert witnesses, especially because it was clear that the syndrome would be used to explain Burnett's "behavior on the day in question."

After that, a shaken Gerard asked for the one thing Young hoped to avoid: delaying the trial.

"The only way to fix it is to continue the trial," he pleaded. "Give us time to get an expert witness."

If the judge refused, Gerard said he wouldn't be able to give his "client the best defense."

Fuming, the judge took a recess.

When Young returned to court room, he came with an impassioned decree.

"I'm addressing the attorneys in this courtroom, but I'm also addressing the five members of the Wyoming Supreme Court if they ultimately read this so they can understand how this happened in real time," he said.

Attorneys have pleaded their cases thousands of times before Young, but now the judge was pleading his own to posterity, trying to explain why he was forced to put off this trial.

Young said couldn't guarantee a fair trial if he prevented evidence that "somehow explained (Burnett's) behavior."

There would be no trial starting Monday. The judge had "no choice."

When the court's clerks returned from lunch a half hour later, they were surprised with the task of calling all 56 potential jurors, telling them that their services the following week were no longer needed. The witnesses -- including the victim, who traveled to Lander for the trial -- would also need to be called.

"They have cleared their calendars ... and some have forgone vacations for this," Young said.

He lambasted Gerard for trying to put prosecutors in a "completely untenable position."

With a trial rescheduled for January, that same jury pool probably will be called upon again to join for another trial.

As a result of what Young called "the textbook definition of ineffectiveness of counsel," a week's scheduled legal proceedings had been wasted.

With a trial expected, Young's schedule this week had been cleared hearings in some of the roughly 60 open cases he has.

He also has about 30 probation revocations pending.

Those numbers don't include the juvenile, civil and adoption hearings that usually occupy half his week.

As he received a tongue-lashing from the judge, Gerard could only hang his head.

"I know you're very unhappy with me," the young attorney said apologetically to Young. "This is completely my fault."

Young eventually rescheduled the trial for Jan. 16, but not before taking an hour to cool off.

Experts expensive

Gerard, whom Stebner called "highly competent," said he would have called for an expert witness if not for the "enormous budgetary restraints on the public defender's office."

Some expert witnesses can cost tens of thousands of dollars, and to get one, public defenders have to go through a lengthy application process that sometimes ends with a flat denial from their superiors.

It's a tall task, especially in a case that's expected to settle.

If public defenders can avoid those costs in a case when they believe they can get the same testimony from a lay person, they usually will.

All or nothing

A trial in Burnett's case might have never been necessary if the attorneys had come to a plea deal.

However, the prosecutors never budged on the felony charge, and Gerard's next best bet was to asked for "unlawful contact" to be included as a lesser included charge at trial.

That would have allowed a jury to acquit Burnett on the felony while still convicting him of some sort of crime.

That misdemeanor would prevent Burnett from being imprisoned for any longer than six months.

Gerard's request led attorneys to scrutinize complicated case and arguing in court briefs over things like whether the breast flick was inherently "rude, angry or insolent" and an unlawful contact charge requires.

Young, however, ruled on Friday that unlawful contact wouldn't be allowed to be a lesser included offense because it would require prosecutors to prove three criminal elements not required to be proven in the sexual abuse charge.

The trial would be all or nothing.

Sex abuse theater

Gerard originally had planned to re-enact the breast flicking incident for the jury.

He'd bring in a couch, having Burnett play himself and Schoneberger play the part of the victim.

He said it was important for the jury to see the incident to counteract the "enormous amount of sexual innuendo" carried by Burnett's recorded account of the incident to Lutterman.

"I sounds bad until you see what happens with your own eyes," he said.

A verbal account, he said, wouldn't suffice in conveying Burnett's actions that are "hard to describe or subject to different interpretation."

Stebner, however, argued that a demonstration where the victim is replaced by "a grown-up who knows what's going to happen" would be prejudicial in making the jury think the incident was "not really a big deal."

He asked the judge to disallow a "full-blown reenactment," which he said would have "little probative value in determining (Burnett's) purpose."

He also expressed concern over how the court reporter would manage to convey the proceedings.

Young decided not to allow the re-enactment "as proposed" because he had "little assurance that it will be accurately recreated.

"To have a second person on that couch is going to raise a lot of issues that are going to distract the jury," Young said.

He would, however, allow Gerard to re-enact it using Burnett and "some sort of mannequin."

Original incident

Burnett was charged after the incident at his friend's house in May 2016.

While at the house he and his friend's 13-year-old daughter engaged in a "'playful' interaction of tickling, pushing, and slapping each other for approximately 30 minutes," according to Lutterman.

Lutterman said they also "each picked dandelions and took turns attempting to rub them on each other's faces."

The interaction eventually ended with the breast flick that made the victim "uncomfortable." She then "sent a text to her cousin to come pick her up immediately."

Lutterman said that during his interrogation of Burnett, the defendant said he was sexually aroused when the victim was "flirting with him."

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