Rape case thrown out

 Attorneys for a 56-year-old Myron C. Nichols of  Red Cloud who is accused of raping a teenager are asking a judge to throw out the case due to the recording of privileged telephone conversations at the Webster County Jail.

Attorneys Ben Murray and Don Theobald represent  Nichols in a Webster County District Court case alleging one count of first-degree sexual assault, one count of intentional child abuse and three counts of third-degree sexual assault.

By mutual agreement, the hearing Friday was heard at the Adams County District Court.

Murray filed a motion to dismiss the case April 2 after learning that protected phone conversations had been recorded by an automated system at the Webster County Jail in Red Cloud. Attorney-client privilege protects conversations between an attorney and a client are under the Sixth Amendment.

Murray asked District Judge Stephen Illingworth to dismiss the charges because the lead investigator in the case had possession of a compact disc containing recordings of three calls to Murray’s office  .He said those calls would have contained trial strategy about the defense’s case, which was scheduled to go before a jury in April. “The prosecution being in possession of these recordings is presumptively prejudicial,” Murray said.

Prosecuting attorneys in the case, George Welch with the Nebraska Attorney General’s Office and Webster County Attorney Sara Bockstadter, argue that the prosecution didn’t gain an unfair advantage from the recordings.

In his opening statement, Welch said the prosecution didn’t have knowledge of the recordings or the contents until notified by law enforcement six days before the trial was to start.“Nobody learned of any confidential communication because there was never any review of the recordings,” he said.

Webster County Sheriff Troy Schmitz testified Friday that about 60 phone conversations between Nichols and Murray’s office were recorded between the time Murray was appointed in June 2017 to help represent Nichols and the time Schmitz discovered the recordings in March 2018.

Schmitz explained that Webster County Jail inmates wishing to talk to an attorney usually request a cordless phone from jail staff. Conversations on this line are not recorded and the phone is made readily available to inmates unless the phone is in use. But Schmitz said inmates also have access to two phones in the day holding area of the jail. Calls on these phones are paid for using pre-paid phone cards, and conversations are recorded. At the beginning of each call, users on both ends of the line are notified that the conversation may be recorded.

During a visit Murray made to the jail, Schmitz realized it was possible that Nichols had been making phone calls to Murray over the recorded line. He asked Chief Deputy Sheriff Ron Sunday to check and found those conversations had been recorded.  Once the recordings were discovered, Schmitz said, Sunday notified the Webster County Attorney’s Office, who alerted Murray and Theobald.

Schmitz explained that a Texas company is contracted to provide the recording service and storage of the recordings. Phone numbers can be manually excluded from the recordings. Schmitz and Sunday are the only two with access to the computer system besides the contracting company.

Sunday testified that he handles the maintenance of the system for the Webster County Sheriff’s Office. He said each of the files is monitored and any access is noted in the system. He pulled up the list of recordings in the presence of attorneys in the case and found that three of the recorded conversations had been accessed.

Sunday said he had downloaded the recordings as part of a search request from Webster County Sheriff’s Sgt. Dianne Nichols. The three recordings were among 31 that Sunday downloaded to a CD for the deputy.

Sgt. Nichols testified that she had asked for a week’s worth of calls placed by Myron Nichols as part of an investigation into a witness tampering case. She said one of the alleged victims had received a threatening text message. She said she reviewed each of the calls during her investigation, but once she realized some of the calls were to an attorney, she forwarded the playback to the next call. She said that in two of the calls between Myron and Murray’s secretary, the secretary said Murray wasn’t in the office. On the third call, the secretary said Murray was in and said she would put him on the line. Dianne said she forwarded the recording before Murray got on the line.

Sgt. Nichols explained that she didn’t report that she had stumbled upon the recordings because she didn’t realize she should. “I knew I couldn’t listen to it, but I didn’t know I couldn’t have it,” she testified.

Illingworth took the case under advisement and gave each side two weeks to submit briefs with final arguments. Each side will have an additional two weeks to submit a rebuttal brief if desired.

According to the arrest affidavit, Myron Nichols is accused of sexually assaulting a girl in Red Cloud sometime between May and July 2013, when she was 16 or 17. The alleged victim told authorities that Myron provided alcohol and marijuana to herself and other children before carrying her to his room where he raped her.

First-degree sexual assault is a Class 1B felony punishable by 20 years to life in prison. Intentional child abuse is a Class 3A felony punishable by up to three years imprisonment and a $10,000 fine. Third-degree sexual assault is a Class 1 misdemeanor punishable by up to one year in jail and a $1,000 fine.