- Another judge denied prosecutors' request to disqualify Judge Jay Winward in the case for Parker Kingston, a former BYU football player charged with rape.
- Prosecutors argued Winward considered Kingston's career over the victim's health in a decision to not delay the trial.
- Kingston's trial is set for July 6 with earlier hearings scheduled on Wednesday and June 17.
ST. GEORGE — A request from prosecutors to disqualify the judge overseeing the case for former BYU football player Parker Kingston, who is charged with rape, was denied despite claims from the alleged victim who said she does not believe there will be a fair trial with the current judge.
The ruling was entered by 5th District Court Presiding Judge John Walton on Tuesday, the day after prosecutors asked for the judge to be disqualified.
He said the court's consideration was not a factor because Kingston is a college athlete but because in each case the defendant's school and employment are factors to consider along with the right to a speedy trial.
Walton said prosecutors asked for an open-ended continuance, or postponement, and allowing a continuance until July "was an effort to balance the rights of both parties."
In his motion seeking to disqualify the judge, Washington County Attorney Jerry Jaeger said there are "substantial concerns" about the appearance of 5th District Judge Jay Winward's impartiality after he denied a request from the state to delay the trial.
The attorney said the document was filed "reluctantly" and only after the judge refused to recuse himself. Jaeger said there is a "pattern of conduct" and statements, both in and out of hearings, favoring Kingston's interests "based upon his status as a prominent athlete."
"The alleged victim in this case has lost all confidence that she can receive a fair proceeding before Judge Winward. The victim seeks nothing more than the opportunity to present her testimony and have the allegations adjudicated before an impartial court and jury," the motion said.
Kingston is currently scheduled for a jury trial from July 6 to July 10, with a pretrial conference on June 17.
Walton's order said the judge found Winward's order to continue a previously scheduled trial shows "a clear and thoughtful balancing of the state's interest ... with the defendant's right to a speedy trial."
Monday's motion argued the case has moved toward trial at a pace that does not match similar out-of-custody cases — "based, at least in part, upon the court's stated concern for (Kingston's) athletic career and related opportunities."
"Reliance upon (Kingston's) athletic career as a factor in scheduling decisions creates the appearance that (he) is receiving preferential and privileged treatment unavailable to ordinary criminal defendants," it claims.
The filing states that in a hearing on May 18, Winward said he would consider Kingston's sports career for scheduling trial dates — but should have given more weight to the woman's medical and mental health concerns.
Jaeger said medical professionals told Winward that the woman needed 12 more weeks to be "medically and psychologically capable of testifying," and an earlier trial could adversely affect her health. Her attorney was also unavailable on the dates the court set for the trial.
"The court's refusal to reasonably accommodate the victim's medical needs, while simultaneously emphasizing the defendant's athletic career, creates a substantial appearance of partiality," the motion contested.
In addition, Jaegar argued that Winward allowed Kingston's attorneys to use the woman's name twice during the preliminary hearing without holding them in contempt. He said the woman "reasonably" perceived these rulings to mean her interests were not protected while Kingston's were.
Walton said there is no basis to conclude Kingston's attorneys used the woman's name intentionally, prosecutors did not request the court find them in contempt and there does not appear to be a basis for a finding of contempt.
The prosecutor also said Winward dismissed a separate case involving an athlete at a preliminary hearing, a decision that is currently under appeal. In response to this, Walton said this suggestion "strains credulity," as the cases are "entirely different."
Evidence at trial
Prosecutors also filed a motion on Monday asking the judge to deny a request from Kingston to allow the woman's former boyfriend and three other men to testify, along with evidence of an alleged sexual assault and of "religious guilt-based limitations on sexual activity."
It said Utah Rules of Evidence prohibit the evidence except in certain circumstances, something known as the rape shield, and that the evidence is hearsay.
Winward will be considering this motion and the response in a hearing on Wednesday in preparation for the jury trial.
The motion Kingston filed asking to admit the evidence is private and not available to the public, but prosecutors said he argued his constitutional rights would be violated if the evidence were not allowed to be considered by a jury.
Prosecutors contested the claim, saying their case centers not around the woman's sexual inexperience but on a lack of consent.
It said the woman and Kingston had planned to go on a double date after speaking for a month, and when that did not happen, she invited him to her home.
According to the filing, they talked about and participated in consensual sexual activities, but the woman had communicated prior to inviting Kingston over that she would not have sexual intercourse with him. Prosecutors allege that the woman left to get ready for bed, and when she returned, Kingston had sexual intercourse with her despite a lack of consent.
Kingston is charged with rape, a first-degree felony.
