 Edward Ghostbear
At the time, the church basement doubled as a homeless shelter. Ghostbear was arrested after the girl, who was identified as A.T., said that she had been sexually assaulted in the basement when no one else was present. She said that Ghostbear removed her pajama bottoms and underwear and touched her inappropriately.
The girl also said she had been assaulted on prior occasions. In her statement, A.T. said it happened “every time” she went to the church. She claimed she had reported Ghostbear to the church caretaker, Myron David.
Ghostbear was charged with one count of sexual intercourse without consent and an alternative count of sexual assault. He went to trial in Hill County District Court in October 2012.
Evidence showed that prior to the day Ghostbear was arrested, A.T.’s mother, Tonya Thunderhawk, was in a tumultuous relationship with Ghostbear that involved frequent arguments and the consumption of alcohol. On January 7, 2012, Thunderhawk went out for the evening and left A.T. with a relative. When Thunderhawk came home on the morning of January 8, she picked up A.T. and dropped her off at the church to be with Ghostbear so that Thunderhawk could go home to pass out.
A.T. arrived during the Sunday service and afterward, some of the churchgoers, including Ghostbear and A.T., went to the basement. The last parishioner left around 1 p.m. Soon after, the four teenaged children of the caretaker came to celebrate his birthday with him. David had a small bedroom in the basement, which also had a common area with living room furniture and a kitchen. They spent much of the time in the bedroom, but also were in the common area.
Ghostbear walked A.T. home around 5 p.m. There, Ghostbear and Thunderhawk quarreled and she threatened to put Ghostbear in jail. She physically attacked Ghostbear and accused him of cheating on her with another woman. She ordered Ghostbear to leave and he did. Thunderhawk then began angrily questioning A.T. After first saying she was fine, A.T. eventually said that Ghostbear had done bad things to her and that she had pain when she went to the bathroom.
Thunderhawk ran to the church and pounded on the door until David, the caretaker came out and said Ghostbear was not there. She then called Ghostbear, who agreed to meet her at the church. When he arrived, Thunderhawk accused him of sexually assaulting A.T. and began punching him. David called 911. When Havre police arrived, Thunderhawk repeated the allegation. A.T. was taken to the hospital where only a basic trauma evaluation was performed because the staff was not qualified to perform a sexual assault evaluation. No physical evidence of assault was found.
A.T. was then interviewed by Havre Detective Sgt. Jason Barkus, who said she was reluctant to talk. She eventually said, however, that Ghostbear touched her with his hand and touched her on the inside, which hurt. She also said that he removed her pants and underwear. Barkus would later testify that although she said it happened every time she went to the church, the only specific time she could describe occurred earlier that day.
The following day, A.T. went to Great Falls, Montana for a sexual assault evaluation. It was her eighth birthday. Doctors did not find any physical signs of trauma, although a physician would testify that it was normal not to find any physical evidence of trauma after sexual abuse.
Barkus and another officer interviewed Ghostbear, who denied he had ever touched A.T.
Prior to trial, Ghostbear’s defense attorney asked the trial judge, Daniel Boucher, to review the records of A.T.'s therapy sessions that occurred after Ghostbear was charged to determine whether there was any information that might be used to impeach A.T. The prosecution provided the records and Judge Boucher said he found “nothing in these records of any relevance to the present matter.”
During jury selection, Ghostbear’s defense attorney asked prospective jurors if they believed that an eight-year-old girl would only come to court and make a claim of being improperly touched if it were true. One prospective juror said she would believe the girl. The defense lawyer asked, “The very fact that she sits in the chair, comes to court, you’re going to believe her, aren’t you?”
“Yes,” the prospective juror said.
The defense lawyer asked that the woman be excused for cause because she was unable to be fair. The prosecutor then questioned the woman, asking if her perception of what the child said would be based upon all the evidence. “It may change, depending upon what I heard,” the woman said.
“So you have an open mind to hear all of the evidence?” the prosecutor asked.
“Yes,” the woman said.
But when Judge Boucher asked the woman if she could listen to A.T.’s testimony and weigh her credibility based on what she saw and heard, the woman replied, “I really don’t know. I can’t answer that.” Boucher pressed her, asking if she could listen to all of the witnesses and decide if the prosecution had met its burden of proof.
“I don’t think I could do that,” the woman said. “I would try to be fair, but I don’t think I could do it.”
Boucher then asked, “Are you telling me now that…you are concerned that your belief that a child witness should be believed is so strong that you would not be able to follow the instructions and wait until all of the evidence is in before you decide the State has proved its case beyond a reasonable doubt?”
“No,” the woman said. “I could listen to it and decide, yes.”
Boucher declined to excuse the juror. As a result, the defense used one of its peremptory challenges to excuse the woman.
A.T. testified that Ghostbear would “touch me on my front part and back part” when he was alone with her. She said he sometimes touched her on top of clothes and sometimes inside of her clothes. Sometimes it happened at home when her mother was at work, A.T. said. She said that the last time Ghostbear touched her “inside” was at the church on the day Ghostbear was arrested and that he touched her with his “bad part,” which was covered by a “white plastic thing.” She said she had not said anything previously because Ghostbear threatened to hurt her and her mom or kill her cat. She said he told her that her mother would spank her if she spoke up.
The prosecution’s forensic interviewer testified that he repeatedly asked A.T. to detail a specific time of abuse other than the incident on the day of Ghostbear’s arrest, but she said she forgot or didn’t know.
David, the caretaker, and his four teenagers testified they were present in the church basement on that afternoon. All testified that they were constantly in and out of the common room while attempting to watch a long and boring movie on a laptop with insufficient volume in David’s bedroom.
They all said that not only did they not see any sexual contact, but also that Ghostbear was not even interacting with A.T. They testified that he was sleeping in an easy chair while A.T. was playing by herself with art supplies or was writing “I’m bored,” on a chalkboard. David denied that A.T. had ever told him that Ghostbear abused her.
Ghostbear testified that two days before A.T. made the allegation, Thunderhawk told him their relationship was over. He said that on that Sunday, A.T. arrived at the church while he was attending the service. After it was over, they walked to a grocery store and then spent the rest of the afternoon at the church. He said he walked A.T. home, where he got into an argument with Thunderhawk because she was drunk and angry.
He testified that Thunderhawk told him she had found someone else. He said he told her that was fine. He said that as he was leaving, she threatened to put him in jail.
On October 30, 2012, the jury acquitted Ghostbear of sexual intercourse without consent relating to the January 8, 2012 incident. The jury convicted Ghostbear of sexual assault. Ghostbear’s attorney then filed a motion requesting that he be sentenced for misdemeanor, not felony, sexual assault. He argued that the felony statute required that the jury had to find that the complainant was under 12 years old and that Ghostbear was 18 or older.
Before that motion was decided, Ghostbear’s lawyer filed a motion for new trial claiming that a juror had failed to disclose during jury selection that he was a victim of sexual abuse. The juror provided an affidavit saying he did not disclose the information because “I believed it to be no one’s business.”
While both motions were pending, Ghostbear’s attorney then moved to withdraw his motion for a new trial if Judge Boucher would grant the motion to sentence Ghostbear for a misdemeanor instead of a felony. Judge Boucher granted that motion, ruling that the prosecution had not provided proof of the ages and that the jury had not made a factual finding as to the ages of the victim and Ghostbear. The prosecution then appealed.
In July 2014, the Montana Supreme Court reversed that decision and ruled that Ghostbear should be sentenced for felony sexual assault. A.T. had testified to her age at the time and Ghostbear had confirmed it during his testimony, the court noted. In addition, Ghostbear testified that he was born in 1977 and was 34 when he was arrested.
The court said the evidence was clear. “The jurors saw, and therefore could consider, the appearance of Ghostbear as a mature man and the victim as a child,” the court said.
Following the ruling, Ghostbear sought to reinstate his motion for a new trial based on the juror’s failure to disclose he had been sexually abused as a boy. At a hearing, the juror testified that his vote to convict was based on the evidence presented and not on his prior experience. Judge Boucher denied the motion for a new trial. On September 11, 2017, he sentenced Ghostbear to 15 years in prison with 10 years of the sentence suspended.
Ghostbear, represented by assistant appellate defender Koan Mercer, then appealed. He sought a new trial on several grounds, including the judge’s decision to force the defense to use a peremptory challenge to excuse the prospective juror who insisted she would not question the testimony of a child witness. In addition, Mercer argued that A.T’s therapy records should have been disclosed.
The prosecution, in its appeals brief, said it had examined those records and that there were statements that were “potentially exculpatory” regarding A.T.’s credibility. “The records indicate that during therapy sessions A.T. told ‘far-fetched stories…For example, [A.T.] told her peers that she went to Africa, told Therapist she had been in Las Vegas the night before in addition to other stories,’” the prosecution said. “The records also indicated that A.T. ‘lied about her actions even when adults caught her in the act[.]’”
The prosecution argued that the conviction should stand because even if the information had been disclosed, the jury still would have convicted Ghostbear. “Evidence that A.T. told far-fetched stories or told lies about her actions during therapy would not significantly undercut her allegation that she was sexually abused by Ghostbear in the church basement,” the prosecution claimed.
In response, Mercer noted that during closing argument, the prosecutor asked jurors “to tell [A.T.] that you believe her,” argued A.T. had no motive to lie, and faulted Ghostbear for not testifying that A.T. was “a liar.”
In March 2020, the Montana Supreme Court reversed Ghostbear’s conviction and ordered a new trial. The court confined its ruling only to the issue of whether Judge Boucher should have excused the prospective juror who said she would believe a child who testified. The court ruled that Ghostbear had been unfairly deprived of a peremptory challenge by the judge’s erroneous decision to not excuse the prospective juror. The prospective juror’s statements “evinced an inability to act with impartiality and without prejudice toward Ghostbear,” the court ruled.
On April 2, 2020, Ghostbear was released on bond pending a possible retrial. On December 18, 2020, the prosecution dismissed the charges.
– Maurice Possley
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