Church rape appeal goes to high court

Last modified: 11/8/2011 12:00:00 AM
Before jurors convicted Ernest Willis of forcibly raping his teenage babysitter twice in 1997, they heard testimony from his former pastor at Trinity Baptist Church, who said Willis confessed to twice having sexual contact with the 15-year-old girl and described himself as the "aggressor."

Now attorneys for Willis, who was sentenced in September to 15 to 30 years in prison, are seeking to challenge the admission of that testimony with an appeal to the state Supreme Court, asking the justices to consider whether it was a mistake for a Merrimack County Superior Court judge to decide that conversations between Willis and former Trinity Baptist pastor Chuck Phelps weren't protected by religious privilege.

The question is one of 14 listed in Willis's notice of appeal, which was accepted by the Supreme Court last month. Besides the decision to allow Phelps's testimony, public defenders Donna Brown and Brooksley Belanger want the court to consider whether Judge Larry Smukler erred in allowing other evidence to be admitted during the trial, including testimony that Willis invoked his right to an attorney in 1997 and did not at that time give a statement to the police.

In the notice of appeal, the attorneys also raise questions about Smukler's decision to deny their motions to set aside Willis's verdicts, in which they argued that jurors didn't have enough evidence to convict Willis because the victim said she couldn't remember details about the rapes. And they indicate questions about the court's decision not to dismiss certain jurors, including a woman who knew one of the witnesses.

Briefs have not yet been filed, so it's unclear what the focus of Willis's appeal will be. But all 14 questions are not likely to make it into the appeal, said Chief Appellate Defender Christopher Johnson, whose office will be handling the case going forward.

"It's certainly possible we could raise 14 issues, but that would be exceptionally unusual," Johnson said. Since the trial transcript isn't complete, the appellate defenders haven't yet reviewed the questions from Brown and Belanger and met with the attorneys to discuss the most significant issues, he said.

To win an appeal, Johnson's office must demonstrate that a significant error occurred during the trial stage of the case.

In Willis's trial in May, Judge Larry Smukler ruled before Phelps took the stand that the pastor's conversations with the defendant weren't protected by religious privilege, which is provided for in the rules governing state court proceedings.

Those rules say that an ordained minister isn't required to disclose a confession made to him in his "professional character as spiritual advisor" unless the confessor waives the privilege.

For the two conversations in question in Willis's case, Smukler said the religious privilege didn't apply because Willis's statements weren't confessions. The first conversation happened after Phelps got a call from a church member about an emergency involving the girl, Tina Anderson.

At Anderson's house, Phelps learned that girl was pregnant, and Willis was the father. He called Willis the next morning and asked him to come to his office, where Willis admitted to having sexual contact with Anderson twice, according to Phelps's testimony.

That doesn't count as a confession, Smukler said, because Willis hadn't attempted to seek guidance or counseling from Phelps, and the pastor called for the conversation as part of an "investigation" he was conducting into whether church rules had been broken.

Smukler said the same reasoning applied to the second conversation in question, which happened on the same day as the first and involved Willis telling Phelps that he had been the "aggressor" in his conduct with Anderson.

But beside the investigative purpose of the conversation, Willis's wife and the pastor's wife were also present, meaning Willis waived any privilege to keep the statements confidential, Smukler said.

And even if Willis's conversations with Phelps were considered privileged, he waived that right after he talked to the police about the subject matter in question, Smukler said.

Smukler made those arguments in a written order that expanded on the oral ruling he issued during Willis's trial, after the attorneys questioned Phelps outside of the presence of jurors. Phelps said during that questioning that he had consulted an attorney before speaking to Willis, was aware of the religious privilege and didn't want to violate it.

Johnson said yesterday it could take months for the trial transcript to be prepared and reviewed. He said the court won't assign a due date for both sides to submit briefs before the transcript is complete.

(Maddie Hanna can be reached at 369-3321 or


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