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Published January 15, 2014, 08:00 PM

Special rules for video evidence in sex assault trial, man faces life sentence in violent Cavalier case

Video evidence in a Cavalier, N.D., sexual assault case is so violent and explicit that the judge said Wednesday he plans to keep the court room audience from seeing the videos and figures some jurors will be “traumatized” by them.

By: Stephen J. Lee, Grand Forks Herald

GRAFTON, N.D. - Video evidence in a Cavalier, N.D., sexual assault case is so violent and explicit that the judge said Wednesday he plans to keep the court room audience from seeing the videos and figures some jurors will be "traumatized" by them.

Gregory Kitchens, 46, is accused of beating, tying up and sexually assaulting an acquaintance from January until March 2013 in their Cavalier home and recording on video many of the assaults.

He is charged with eight counts of gross sexual imposition, each of which carries a maximum sentence of life in prison without parole and minimum sentences of up to 20 years.

Seven of the felony counts allege the violent sexual assaults can be seen on video, including the victim being bound hand and foot, pleading with him to stop, to not hurt her and crying out in pain, as well as the assaults themselves in brutal and explicit detail.

Court officials who have seen the video tapes, or even read descriptions of them, say they are sickening.

Prosecutor Barbara Whelan said this is worst sexual assault case she has seen in years as a prosecutor.

Defense attorney Henry Howe, Grand Forks, has filed a motion to suppress the evidence seized under the search warrant but has not yet filed a brief outlining his arguments for such a suppression, according to court officials.

Kitchens' jury trial is scheduled for March 3 in Cavalier before Judge Donovan Foughty.

Since Kitchens' arrest in April, he's been in the Pembina County jail. He's said little at his first court appearances and has shown no interest in seeking a plea deal, court officials said.

Unusual trial

On Wednesday, Judge Foughty told Whelan and Howe at a pre-trial conference call that court officials in Cavalier would have to provide special equipment for the jurors to view the video evidence, including some method to keep the general court room gallery from seeing the videos, an unusual move in North Dakota trials.

The Herald was able to listen to the conference via speaker phone in the Walsh County Court House in Grafton. Whelan, the Walsh County state's attorney has been filling in the past year as prosecutor in Pembina County.

The nature of the video evidence is also prompting Foughty to include three to four alternate jurors in case some can't make it through, the judge told attorneys. One or two alternates is the norm even for murder trials.

"I think some people will be traumatized, based on my own personal observation of what I saw on those DVDs," Foughty said.

In the criminal complaint, Whelan alleges that the victim had many obvious injuries and wounds on her body from Kitchens' attacks and required emergency medical care. In their home, investigators found bloody ropes, plastic ties and metal hose clamps Kitchens used on the victim, the complaint added.

The judge also said the initial jury pool will have to be larger than normal because of the seriousness of the charges.

Victim in jail

The victim herself is in jail in Grafton on separate charges, including two felony counts alleging she spit on and assaulted a law enforcement officer in September. The Herald is not publishing her name because she is the victim of the alleged assaults.

She called the Herald several days ago, saying she was being unfairly held and treated in jail.

Authorities are holding her just so she will be available to testify against Kitchens at his trial, she said. She wants to testify against him, but says it's not right that she's been in jail for several months, she said.

Whelan did detain the woman for a time last year, under state rules allowing such detention of a material witness in a felony case under certain circumstances.

But the woman, who is in her early 30s, now is awaiting her next court appearance on her own felony charges, unable to make her bail.

She said she and Kitchens moved to North Dakota in late 2012 from Alabama because Kitchens got a job at American Crystal Sugar Co. They first lived in a Grand Forks motel, where Kitchens began his assaults on her. But they were not as severe as they later became because other people could hear what was going on in the motel room, she said.

When they moved to Cavalier a year ago, she said Kitchens began regularly "torturing" her, tying her up, beating and choking her and violently sexually assaulting her is several ways.

Evidence dispute

Because of the unusual nature of the charges alleging that nearly all of the assaults can be seen on DVDs recorded by Kitchens himself, it appears he will maintain that the victim consented to the actions.

On Wednesday, Howe told Judge Foughty he wanted to be sure he had access to certain medical and mental health records for the victim.

Because Foughty signed the search warrants used to obtain the DVDs which Howe is seeking to keep out of the trial, his motion to suppress that evidence is being heard by state District Judge Lee Christofferson.