WILLMAR -- A ruling by the Minnesota Court of Appeals Tuesday has hampered, at least temporarily, a 2004 Kandiyohi County court case against a Lowry man accused of molesting two girls.
The court ruled Tuesday that statements about the alleged abuse made by a then 6-year-old girl during an interview at Midwest Children's Resource Center in May 2004 are inadmissible in court.
Edward Richard Krasky, 33, faces 12 felony counts for the alleged acts, but the trial has been tied up in court appeals for more than two years. Hang ups in the trial began shortly after the county attempted to use the child's statements from the interview in court.
The Court of Appeals reached a decision Tuesday based on previous U.S. Supreme Court rulings that deem certain forms of evidence as testimonial in nature and therefore in violation of the sixth amendment. The sixth amendment states that, "the accused shall enjoy the right ... to be confronted with the witnesses against him."
Krasky was charged in 2004 with six felony counts of criminal sexual conduct in the first degree, four counts in the second degree and two second-degree counts of multiple acts of criminal sexual conduct after a 2004 investigation by the Willmar Police Department.
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According to the complaint, Krasky allegedly molested the then 1- to 2-year-old girls at his Willmar residence. One of the girls, when interviewed, indicated Krasky performed oral sex on her and even penetrated her with his penis and finger.
The complaint alleges that Krasky also inappropriately touched the girls while bathing them. During a police interview, Krasky allegedly said he washed the girl's genitalia with his fingers because there was not a clean washcloth. He denied having sex with either of the girls.
The appeals process in the case began after a district court ruled not to allow the child's interview statements as evidence.
Prosecutors first appealed the district court decision to the Minnesota Court of Appeals. The Court of Appeals ruled in favor of the prosecutors in 2005, allowing the statements made by the child to be used in the trial. Krasky then appealed the decision to the Minnesota Supreme Court, which remanded the case back to the Court of Appeals taking into account recent U.S. Supreme Court rulings.
In Tuesday's decision, the Court of Appeals cited both Crawford v. Washington and Davis v. Washington, stating in the opinion that "when government questioning concerns past events potentially relevant to later criminal prosecution, that there is no occasion for ... uses of the information other than prosecution."
The Court of Appeals defined testimonial as the difference "between finding out 'what is happening,' as in the case of an emergency, and finding out 'what happened,' which occurs in the course of any investigation.
In both Crawford and Davis, testimonial statements were used against the defendants to prove their guilt. And in both cases the defendants appealed, and won, on the grounds that they were unable to cross-examine the witness.
However, both Crawford and Davis dealt with adult testimony, unlike the Krasky case which deals with young children, who are often found incompetent to take the stand.
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Krasky's case is similar in the fact that the interview was carried out after the alleged abuse had happened and the children were living in a foster home away from Krasky.
"There is, unquestionably, a unique public interest in support of criminal prosecution of child abusers," Judge Gary L. Crippen said in Tuesday's opinion. "But we may not, as the Supreme Court noted in Davis, 'vitiate constitutional guarantees when they have the effect of allowing the guilty go free.'"
First Assistant Kandiyohi County Attorney Connie Crowell was displeased with the Court of Appeals decision.
"Very disappointing, but not unexpected," she said. "It's very likely we will take this up on appeal."
Crowell said the office is looking at appeal options to the Minnesota Supreme Court, but would not go into detail about when the decision would be made. Krasky is still being held at the Kandiyohi County Jail. His attorney John Holbrook refused to comment on the court case.
