grand jury: Idaho's Criminal Injustice System

(Second in an occasional series. )

His name is Gilligan, but he's nobody's "little buddy." Employed as a prison guard at the Idaho Maximum Security Institution in 2007, Timothy Ryan Gilligan, by his own admission, repeatedly had sexual relations with an inmate.

Earlier this month (September 2009), Gilligan was arraigned on a charge of felonious sexual misconduct. Thanks to the inexplicable leniency of the prosecution and the unwonted generosity of the Idaho Sex Offender Classification Board, Gilligan will not have to register as a sex offender. Nor will he face prosecution on the sex charge.

In fact, there's a very good chance he won't serve any prison time. This is because the Ada County Prosecutor's office, in collaboration with4th District Judge Ronald Wilper, arranged an agreement in which Gilligan was permitted to plead guilty to a charge of burglary -- despite the fact that t he only thing the offender may have taken by force was a captive woman's self-respect.

The Sex Offender Classification Board helped out by relieving Gilligan of the prospect of being a registered sex offender, or even a violent sexual predator (VSP). This decision was supposedly made on account of the results of a "psycho-sexual evaluation" carried out by SANE Solutions, a quasi-private psychological counseling service that provides such evaluations and supervises treatment of convicted sex offenders.

Gilligan, who worked as a "psychiatric technician" in the prison system subsequent to his admitted offenses, may have known how to game that system. Then again, it's obvious that Gilligan's erstwhile colleagues in the criminal "justice" system have extended every conceivable professional courtesy in the effort to avoid ruining his life by forcing him to register as a sex offender. In sex abuse cases not involving employees of the state criminal "justice" system, the Ada County prosecutor's office has distinguished itself for its zeal, at considerable expense to due process.

One splendid example among many that could be cited to illustrate that tendency was the bizarre trial of David Dutt, who was convicted of sexual misconduct with a child based solely on the self-contradictory account of the adolescent accuser -- and despite physical evidence (the existence of an intact hymeneal membrane in the purported victim) that was sufficient not only to provide reasonable doubt, but to prove the innocence of the accused.

Somehow, the Ada County Prosecutor's office managed to convince a criminally credulous jury that the "victim" in the Dutt Case possessed a uniquely resilient anatomy, one that permitted her to regenerate her traumatized and violated hymen in much the same way that certain lizards can re-grow severed tails. That, coupled with the theatrical, tearful summation of prosecutor Jean Fisher (who suggested that the jury would be party to the little girl's abuse if they didn't believe her allegations), was enough to convict an innocent man and send him to prison for up to 30 years.

The Dutt Case illustrates how the Ada County Prosecutor's office can arrange a sex offense conviction in the absence of evidence. Thus it's astonishing to see the same office refuse to prosecute Gilligan for sex crimes to which he has admitted guilt.

To understand the role played by the Idaho Sex Offender Classification Board in the Gilligan case, one must first understand that its rulings are entirely capricious. This was entirely by design, a fact that was admitted on the record during a May 19, 2006 meeting of the Board.

"The statutory vagueness regarding VSP [Violent Sexual Predator] designations was intended to provide for the board to use its discretion in considering cases," reports the official minutes of that meeting. "A designation criteria checklist is not feasible due to the wide variation of sexual offense/offender behavior. As such, each case is different and considered on its own merits."

Gilligan's conduct -- using his position of power over a captive and (apparently) unwilling woman to force her into sex -- is difficult to describe as anything other than that of a violent sexual predator. Yet the Board didn't see the "merit" in applying that designation to Gilligan, despite his admissions.

One is tempted to think that this validates a comment made not long ago on Idaho Public Television by Idaho state senator Denton Darrington: "I'm concerned ... that we don't get pranksters on the Sex Offender registry, but that we do get those who are deviant on the Sex Offender registry. In other words we don't want the fraternity kid on the football team who's doing a prank to go on the registry."

Forgive me -- I neglected to mention that before he found employment with the Idaho Department of Corrections (IDOC), Timothy Gilligan was a starting wide receiver with the Boise State Broncos.

Granted, it would be difficult to prove that Gilligan's acts were non-consensual. But they were professional compromising and at the very least suggestive of a derangement in his character that made him a potential danger to others.

Whether this is sufficient to warrant prosecution is a matter about which reasonable people can disagree. But this much is incontestable: Given that there are people (such as David Dutt) in prison and on the sex offender rolls in Idaho whose guilt was not reasonably established, the solicitude displayed toward Gilligan screams and reeks of official corruption.

Gilligan admitted to acts recognized as sex offenses under the law, and won't be prosecuted for them. Mark Wicklund, an attorney who transplanted himself to Idaho from the Midwest, was compelled to plead guilty to alleged sex offenses despite the absence of either an alleged victim or a witness. He was sentenced to seven years of probation under the supervision of the above-mentioned SANE Solutions.

On April 24, 2008, despite the fact that Wicklund had committed no additional act to justify such treatment, he was designated a Violent Sexual Predator by the Sex Offender Classification Board. That designation came close on the heels of a probation violation filed against Wicklund for maintaining an internet-based consulting business, which was described, incorrectly, as impermissible under the terms of his probation. As a result, his probation was extended an additional three years.

Wicklund contends, quite plausibly, that both of those actions were retaliation for his refusal to obey a warning he was given by Fourth District Judge Thomas Neville: "Stay away from the Dutt Case."

Judge Neville presided over both the Dutt Case and Wicklund's case.

A few years ago, Wicklund agreed to devote his considerable legal talents to organizing the evidence for David Dutt's post-conviction appeal. His work product lays out a deeply documented, multi-faceted case for overturning Dutt's conviction on numerous grounds -- including, but not limited to, ineffective representation of counsel, several instances of prosecutorial misconduct, and abuse of discretion by the trial judge -- that is, the same Judge Neville who later threatened Wicklund.

As Wicklund related his experience to me, his work on the David Dutt's post-conviction appeal triggered all kinds of punitive mistreatment from people connected to the Ada County prosecutor's office through SANE, the IDOC, the department of probation and parole, and other government and quasi-government entities.

Granted, Wicklund could be dismissed by some as an ax-grinding sex offender (one thus designated, recall, without either a victim or a witness). However, he has documented his allegations, and key elements are confirmed by officials in the state government's employ. Wicklund alleges that the probation violation and VSP designation caused both his mental and physical health to deteriorate rapidly.

This is confirmed by Dave Ferguson, a state-employed counselor assigned to Wicklund, who testified in an affidavit (see page one here, page two here) that he not only suffered from anxiety and depression, but that "his physical health also appeared to deteriorate.... [H]e had to call me from the hospital on at least two occasions after he had been admitted, to indicate that he would have to miss his meetings with me."

Wicklund suffers from congestive heart failure, and Ferguson recalled that following the probation extension and VSP designation Wicklund's weight increased "dramatically" as a result of edema related to his heart condition. Open sores and a staph infection developed in his legs owing to circulatory problems. "The ongoing legal problems, the isolation, probation extension, and the stigma of the VSP designation" all detracted from Wicklund's mental and physical health, concluded Ferguson.

Parole Officer Sutherland: His Facebook page jocularly lists "S&M, chains, whips" among his "interests." Sure, it's a joke (I guess), but if he didn't work for the state as someone in charge of supervising sexual deviants, he'd probably be in trouble of some kind.

Another complication arose when Wicklund was taken to jail following his alleged probation violation.

For several years, Wicklund has taken a strong prescription narcotic called Norco to palliate chronic pain in his knees.

When he was taken to jail by Parole and Probation Officer Brandon Sutherland, the Officer denied Wicklund access to Norco; this led to an involuntary "de-tox from the drug without the benefit of medical supervision. After three days of compelled de-toxification in jail, Wicklund was rousted by Officer Sutherland and taken to undergo a polygraph examination -- paid for with an IDOC voucher -- to answer questions about his purported probation violation.

The exam was administered by Jim Page, at the time a partner with Chip Morgan in a state-contracted firm called Polygraph Associates.

When Morgan, caught a glimpse of Wicklund's condition, he urged Page not to administer the test. According to Morgan, Page dismissed Morgan's concerns -- which were dictated by the ethics of his profession -- with a shrug and the statement, "I really need the money." (Wicklund's original, four-page December 12, 2008 complaint can be seen here, here, here, and here.)
here.)

That comment so alarmed Morgan that he dissolved the partnership immediately and started his own polygraph service.

"I observed that Mark Wicklund appeared physically ill," recalled Morgan in an affidavit. (See here, here, and here.) "He had sweated his jail-issued jumpsuit completely through, was visibly sweating all over his face, was panting heavily and was pasty white in complexion. He also appeared to be `in and out' of tracking with the conversation."

He obviously was in no condition to serve as the subject of a polygraph. Yet Page performed one anyway, and the results were used to uphold Wicklund's probation violation. This prompted Morgan to dissolve his partnership with Page and open his own shop, Morgan Polygraph. Jim Page continues to perform polygraph examinations on sex offenders, despite a patent conflict of interest: His wife, Tess Buttram, is a Deputy Prosecuting Attorney who works on sex crime prosecutions for the Ada County Prosecutor's Office.

Shortly after that incident, Wicklund was summoned to the Fourth District probation office for a meeting he described to me as being akin to "the Spanish Inquisition." In that meeting, Wicklund insists, he was told to "stand down" from his investigation of misconduct by the Ada County Prosecutor's Office and the misbehavior of Jim Page -- which seemed to share a pattern of abuses similar to those committed in the prosecution of David Dutt. If he didn't comply, Wicklund was warned, he would be jailed on "discretionary time," which would mean an open-ended jail term.

Wicklund didn't relent, and neither did his enemies. Earlier this year, his attorney filed a motion for early release from probation; that motion contained two supporting affidavits. According to Wicklund, "Individuals in the Ada County Prosecuting Attorney's Office ... gained access to the court file and removed the two supporting affidavits from the file and destroyed them. Further, individuals from the Ada County Prosecuting Attorney's Office gained access to the official register of court actions for [my] case and deleted the entry documenting the submission of the [two] affidavits."

At present, Judge Neville refuses to review any of the relevant evidence -- which, if Wicklund is correct in describing the judge's threats, isn't surprising.

All of this, once again, was allegedly done in retaliation for Wicklund's work dealing with David Dutt's post-conviction appeal. The Dutt Case appears to be a very sore spot for Judge Neville and the Ada County Prosecutor's Office, and for good reason: That case displays, in very compelling fashion, what critics of the Idaho "criminal justice" system perceive to be institutionalized corruption in the prosecution of sex crimes. How much of this can Wicklund prove? We're likely to find out quite soon.

On August 12 he filed a "Notice of Tort Claim" (available here, here, and here) giving ninety days' notice of his intent to file a lawsuit. He names as defendants the Ada County Prosecuting Attorney's Officer, the Idaho Department of Corrections, Ada County, and the State of Idaho.

By filing his suit Wicklund is taking a large club to an immense, over-stuffed pinata filled with dirty diapers and dead cats. The fallout, while exceptionally unpleasant, will be quite revealing.

Watch this space for additional developments....