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New trial a possibility in Fraga murder case

WORTHINGTON -- The possibility of a new trial for convicted murderer Josue Fraga is being explored after evidence has been introduced that suggests Fraga's eldest son may have sexually abused the victim shortly before the time of her death.

In May 2009, Fraga was convicted of the first-degree murder of his 2-year-old niece, Samantha, who died March 20, 2008. The child lived with Fraga and his wife at the time of her death, which was ruled a homicide. The cause of death was determined by an autopsy to be the result of a traumatic head injury, multiple contusions of the extremities, traumatic injuries of the external sexual organs and rectum, peritonitis and rupture of the stomach.

Jury selection for Fraga's trial took more than four days, the proceedings lasted seven day and deliberation on the jury's part took less than five hours. The prosecution put 38 people on the stand. The defense had less than five.

During the trial, the defense questioned the role of Fraga's oldest son in of Samantha's death. As a juvenile, he is referred to by initials JDF. He was 13 years old when she died.

During an evidentiary hearing Friday morning in Nobles County District Court, Fraga listened to testimony from his son's therapist and his own former attorney.

"There was a disclosure made that JDF has admitted in therapy that he had been sexually abusing the victim," said Cecil Naatz, who served as lead defense during the trial and now found himself on the witness stand.

Naatz said one of their expert witnesses had found evidence during trial preparation that suggested Samantha had been undergoing sexual abuse prior to her death, but didn't want that information to be used against his client. But if the jury had known the 13-year-old had sexually abused the little girl, he said, they may have believed the damage had been caused by JDF, which would have been beneficial to Fraga's case.

Minnesota Assistant Attorney General William Klumpp pointed out that another doctor had testified the damage to Samantha at the time of her death could not have been caused by a 13-year-old's genitals, but Naatz said he could not remember that part of the testimony.

Naatz said JDF had admitted during a psychosexual evaluation and during therapy that he had touched Samantha's genitals.

"But he adamantly denied any penetration, correct?" Klumpp asked, pointing out that the report Naatz was referring to also stated JDF had denied penetration and indicated it was his father who was involved in Samantha's death.

"I don't remember that," Naatz said.

"Would it be fair to say the victim was not fondled to death?" Klumpp asked, receiving an affirmative answer from Naatz.

"And that she also received blunt force trauma to the head?" Klumpp continued.

"I can't remember," Naatz stated, adding that he had worked on several cases since Samantha's death and couldn't recall the details of each one.

Fraga's attorney, Suzanne Senecal-Hill, asked Naatz if the disclosure of JDF's alleged admissions would have changed the course of his defense strategy at trial. Naatz said he would have used the information and possibly had different DNA testing done.

"The state targeted our client from the beginning," Naatz stated.

Frank Weber of Core Professional Services testified that he had completed a psychosexual evaluation of JDF in November 2009 after incidents of abuse involving JDF were reported. According to Weber, JDF admitted he had touched Samantha in a sexual manner, but denied ever penetrating her. He also, Weber said, teared up and became emotional when discussing Samantha, expressing guilt because he did not wake up and save his cousin.

Weber described the teen's demeanor as meek, mild and anxious, generally conforming and typical of an adolescent with touch offenses.

"Did he ever admit to you he was involved in his cousin's death?" Klumpp asked.

"He did not," Weber answered.

"Did he ever give you an idea who was involved?" Klumpp followed up.

"He stated he slept at the time and that his father had been convicted of it," Weber stated.

The teenager was cooperative during the interview, Weber stated. When Klumpp brought up Fraga's wife and her uncooperative nature during the interview process, the defense objected and cut off Weber's response. Throughout the process, Fraga sat quietly, his demeanor seemingly unattached from the proceedings.

A third witness, Clint Sperle, testified as JDF's counselor that the teen also admitted to him six different touching episodes with Samantha and denied ever penetrating her.

Sperle also testified that JDF had commented about wishing he would have woken up so he could have done something about saving Samantha.

"Has he discussed how he feels about being implicated by his father?" Klumpp asked.

"He feels bad about it," Sperle said. "And sad that his dad would blame him for it."

Both the prosecution and the defense have asked for a transcription of Friday's proceedings, which should take several weeks. After they are received, the defense has until mid-March to file a memo addressing the legal issues of whether or not there is sufficient cause for a new trial. The prosecution will then have a month to respond, with rebuttal to be filed a few weeks later. Judge Timothy Connell said he does not plan to be very tough when it comes to scheduling, knowing all of the attorneys involved have busy calendars in the coming months.

When all the filings are complete, Connell will be tasked with the chore of deciding whether the proceedings will continue toward retrial.