Marsy’s Law raised in arguments over change of judge in daycare child abuse case

A long running disagreement about the interpretation of Marsy’s Law in the North Central Judicial District reemerged this week in written arguments over a demand for a change of judge for a former Carpio daycare owner charged with child abuse.

Sarah Ann Babinchak, 34, is charged with Class B felony child abuse, Class B felony aggravated assault on a 5 month old baby, and Class C felony child neglect. She is accused of throwing the baby on the floor and fracturing his skull last December and of abusing or neglecting other children at her Country Steps Daycare. Her defense attorney Ashley Flagstad has said Babinchak wants to clear her name. Flagstad said the baby boy had been sick for two weeks prior to the incident and out of Babinchak’s care. Babinchak called 911 after the baby had a seizure, Flagstad said.

Flagstad filed a demand for a change of judge last week after Judge Stacy Louser set bond at $150,000 cash or corporate surety for Babinchak. Flagstad had asked for an unsecured appearance bond for Babinchak. Ward County Assistant State’s Attorney Christopher Nelson opposed the motion and wrote that Flagstad was wasting the court’s time.

Flagstad had noted in her motion that the demand for a change of judge was filed within the allowable time frame and Louser had not yet issued rulings in the case. Nelson wrote that Louser had already set a bond and had also signed off on a “stipulation for order to produce unredacted discovery,” an order that has become a standard filing in the North Central District. The boiler plate order allows the prosecution to turn over case evidence to the defense that includes information about victims. According to Ward County State’s Attorney Roza Larson’s interpretation of Marsy’s Law, which was passed by North Dakota voters in 2016, a judge’s order is needed before her prosecutors can turn over that information. Judge Gary Lee, the head judge of the jurisdiction, doesn’t agree with the state’s attorney.

“Insofar as the discovery order is concerned, there is no requirement that this Order even be issued,” wrote Lee in his order granting Babinchak a change of judge. “The Order was developed in response to what the Court believes to be the State’s hyper-technical and overly cautious reading of Marsy’s Law, Article I, Section 25, NDConst. Marsy’s Law guarantees protections for putative crime victims from disclosures of information. What the State’s reading ignores is that other provisions of Marsy’s Law provide that it does not abrogate a defendant’s Sixth Amendment rights under the Constitution of the United States, nor diminish the State’s disclosure obligations to the defendant under other laws or rules.

“The Court has simply gone along with the State’s hyper-technical reading of Marsy’s Law, and has signed the Orders for Unredacted Discovery. Frankly, this was done because it was easier to sign the needless order than to argue endlessly in the face of the State’s intransigence. If this Discovery Order is now going to be used by the State as a sword to deny a defendant other statutory rights, it may perhaps be a time to revisit the entire issue.

“Neither the act of setting bond, nor the signing of a needless discovery order by the Court is sufficient grounds to deny a defendant a right to exercise a demand for a change of judge.”

Lee then appointed Judge Todd Cresap to hear the case and Flagstad asked for a bond hearing on Tuesday. In court on Tuesday, Flagstad argued that the bond should be lowered to 10 percent of $150,000, requiring the family to post $15,000.

Nelson again opposed lowering the bond. Cresap said it does look like the Ward County State’s Attorney’s Office was not overly concerned about the safety of the community since it took six months to charge Babinchak but said he would leave the bond at $150,000 cash or corporate surety because of the nature of the charges and because there are multiple allegations of child abuse or neglect involving different alleged victims.


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