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Delay Of Trial Forces Dismissal Of Rape Charges Sweetser Defends Deputy Prosecutor Who Lost Earlier Case On Same Grounds

A Spokane man accused of raping and threatening to kill a teenager escaped prosecution Monday when a judge dismissed the charges.

Superior Court Judge Paul Bastine ruled prosecutors violated Mark N. Kelley’s constitutional rights by taking too long to bring him to trial.

It was the second time this year a judge has tossed out a Spokane rape case on those grounds. Deputy Prosecutor Carol Davis handled both cases.

Kelley was accused of raping a 16-year-old girl and holding her captive in a North Altamont house for six hours on Dec. 3 before surrendering to police.

The incident was highly publicized, with TV crews recording the last minutes of the standoff and Kelley’s arrest.

His trial on first-degree rape, kidnapping and assault charges had been expected to start Monday. If he had been convicted on all counts, he would have faced life in prison.

“I am very reluctant to do what I am doing, but I am going to dismiss the charges,” Bastine wrote. “I do not believe that they were timely brought.”

The decision didn’t set Kelley free. The 31-year-old man, who has a long criminal record, remains in jail facing unrelated charges of armed robbery and child rape.

Bastine’s decision shocked the alleged rape-kidnapping victim.

“It’s messed up,” said the girl, who learned of the ruling Tuesday afternoon and immediately rushed home.

A friend agreed.

“It’s wrong,” said the man, who asked not to be identified. “That guy needs to be locked up for a long time.”

The judge’s move was criticized by Spokane County Prosecutor Jim Sweetser.

Sweetser took time Tuesday during a recess in the Kenneth Comeslast double-murder trial to notify a reporter of Bastine’s decision.

He said he would fight the ruling all the way to the state Supreme Court if necessary.

“We don’t take this lightly,” Sweetser said. “We followed all the rules. We’re real concerned for the public’s safety in this case.”

In his ruling, Bastine said 115 days elapsed between Kelley’s arrest in December and his arraignment in May. By law, the time should not have exceeded 60 days.

“If there had been a waiver of speedy trial, that would have resolved the issue,” Bastine wrote. “And I do not know why there was not a waiver. It is not my obligation to point the finger to anyone at this point.”

Sweetser argued a waiver wasn’t necessary because another Superior Court judge ordered a psychiatric evaluation of Kelley after the charges were filed in early January.

The evaluation determined that Kelley was competent to stand trial and assist in his own defense.

Sweetser said responsibility for violating speedy trial rights should fall on the court because it ordered the evaluation, which wasn’t completed and entered into the record until May 3.

“The court has to be responsible for its docket, too,” the prosecutor said.

Sweetser also criticized Kelley’s attorney, John Nollette, for not raising the issue until the day the trial was to start.

Bastine rejected that argument in his decision, stating, “A defendant has no duty to bring himself to trial.”

Sweetser defended Davis, who came under fire in March when rape charges against former Eastern Washington University football player Tony Ledenko were dropped because a similar deadline was missed.

Speaking on Davis’ behalf, Sweetser said the Ledenko dismissal wasn’t the deputy’s fault.

Another prosecutor who was filling in for her while she was on a trip forgot to file some paperwork seeking an extension, said Sweetser, who did not name the other attorney.

He called Davis a hard-working, caring attorney who’s been the victim of two glitches in the legal system.

Nollette refused to discuss Bastine’s ruling but said he thought prosecutors were wrong in speaking out.

“It’s unfortunate that they feel they had to go to the press with this,” Nollette said. “The proper remedy is to appeal. It’s easy to pick on judges and the courts these days.”

, DataTimes ILLUSTRATION: Color photo


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