FARMINGTON — Prosecutors have urged a judge to block a defense attorney’s effort to compel an alleged victim to testify at an accused serial rapist’s preliminary hearing.
Attorney Clayton Simms issued a subpoena for the woman to participate in a hearing in which a judge will determine whether one of two rape cases against Brandon D. Dunaj, 40, of West Point, will proceed to trial.
Davis County prosecutors said they intended to submit the alleged victim’s written statements at the preliminary hearing, a proceeding in which a judge determines whether probable cause exists to bind over a suspect for trial.
They also planned to present live testimony by a police detective and a sexual assault nurse examiner about the woman’s injuries in the Sept. 13 incident.
A Davis County Sheriff’s Office probable cause affidavit said Dunaj hit the woman multiple times, smashed her head into a tile floor, kicked and hit her head, dragged her by her hair, choked her by placing his hands around her neck and applying pressure, held her against her will and forcibly touched her sexually and made her have intercourse.
But Dunaj “has a right to call witnesses at a preliminary hearing” under the Utah Rules of Criminal Procedure and the Utah Constitution, Simms argued in court documents.
“Requiring the only witness with personal knowledge of the facts at issue to attend a preliminary hearing by subpoena is not unreasonable” under the rules, Simms said.
“Crime victims do not have a right under Utah law to refuse to testify at court hearings when they have been lawfully served with a subpoena,” he wrote.
But the Davis County Attorney’s Office and the Utah Crime Victims Legal Clinic filed separate motions urging 2nd District Judge Thomas Kay to quash the subpoena.
The two sides are scheduled to argue the matter before Kay on Nov. 6.
The prosecutors’ motion said the subpoena “has been served on the victim for an improper purpose” — to conduct pretrial discovery beyond the scope of the law governing preliminary hearings.
“It would be harassing and abusive to force the victim to testify for no valid reason, and it would not be treating her fairly to require her to do so,” the victim rights attorneys wrote in their motion.
Under the Utah Constitution, there is no right to discovery “or confrontation” at a preliminary hearing, the advocates said.
“Moreover, forcing the victim to testify would violate her constitutional rights to be free from harassment and abuse,” they said. “Forcing the victims to appear via a defense subpoena violates these rights.”
They pointed out that a 1995 state constitutional amendment streamlined Utah’s preliminary hearings process in part to prevent such situations.
They also quoted findings of the President’s Task Force on Victims of Crime that said a preliminary hearing “should not be a mini-trial, lasting hours, days, or even weeks, in which the victim has to relive (his or her) victimization.”
The alleged victim in Dunaj’s case has signed statements of her written testimony “under admonition and threat of perjury,” the advocates added.
After Dunaj was arrested Sept. 13, three other women came forward to report they had been raped by Dunaj. One of those reports resulted in a second criminal case against him — he is charged with rape and object rape for an alleged attack in 2011.
In that case, the judge will hear arguments Nov. 26 over whether elements of the defendant’s or alleged victim’s character will be admissible at trial.
Dunaj is held without bail at the Davis County Jail.