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After 20 years, Am. Fork rape conviction overturned

PROVO — After 20 years, a man who the Utah Supreme Court said has been "ignored and forgotten" in prison finally has someone listening to his side of the story.

Carl McClellan was charged with raping a woman while he was selling cleaning supplies door-to-door in American Fork on July 5, 1988.

He was convicted later that year on a five-years-to-life sentence and ended up serving nearly 20 years in prison before being released last March.

But just last week, the Utah Supreme Court ordered that McClellan, now 45, be given a new trial, as his old one was riddled with errors.

"In the years since McClellan's conviction, his case has been passed from attorney to attorney," the Supreme Court wrote in its decision. "Much of the record has been lost or destroyed. The exhibits have been destroyed. Prompt attention to motions, notices and orders has been dramatically lacking. He has been ignored and forgotten. After 20 years in prison, McClellan is still entitled to a fair trial. We therefore remand for a new trial."

McClellan has been waiting to hear that for a long time.

"He was very emotional," his appeals attorney Margaret Lindsay said about his reaction. "I think part of him is still kind of a feeling of disbelief. He really believed there was an injustice done right from the beginning (and has been) waiting to have somebody listen to him, waiting to have his time in court for 20 years."

McClellan's concerns began just days before his trial, when his defense attorney announced that he had been hired by the Utah County Attorney's Office — the agency prosecuting McClellan — and dropped the case.

McClellan argued there was a conflict of interest, but he didn't want to waive his right to a speedy trial, so he and his new attorney went ahead as planned, according to the decision.

Then, during the trial, prosecutors introduced an audio recording of an interview that McClellan and his new defense attorney never knew existed until that day.

The judge allowed the audio tape, and McClellan was eventually convicted.

But when he appealed his case, it took nearly 32 months for the complete record to reach the appellate court, the high court pointed out.

Years later, all of the exhibits for his case, including the audio recording, were presumably destroyed because McClellan, who had no attorney then, wasn't notified about filing a written objection to their destruction, according to the decision.

Regarding the Utah County Attorney's Office, the high court cited Utah law and the Utah Rules of Professional Conduct, which both state that a former defense attorney cannot aid in the prosecution of a former client in the same or very similar matter.

The exception is if the prosecuting office shows it has taken significant steps to isolate that attorney from the case. But without any evidence such was done in McClellan's case, the high court ruled the prosecutor's office should have been excused.

Despite the relief at the ruling, Lindsay said she's not sure what will happen with the case now. She doesn't know if it will be retried, despite the missing evidence, and who would prosecute, given the excusal of the Utah County Attorney's Office.

Despite referencing all of the errors, the Supreme Court said it was "not pleased" with the decision.

"We have no reason to assume that the verdict that would have been reached on a timely retrial would have differed from that reached originally," according to the decision. "However, McClellan's rights have been so severely trodden upon in this instance that it is impossible for us to do otherwise."

e-mail: sisraelsen@desnews.com