RAY, N.D. — In the summer of 2022, investigators at the Williams County Sheriff’s Department in northwest North Dakota received a tip from the National Center for Missing and Exploited Children. Several horrific images involving young children had allegedly been uploaded from an IP address associated with a device at a home in the town of Ray, population 750.
On August 19, 2022, law enforcement carried out search warrants at Gary Donnelly’s residence based on the cybertip that indicated child sexual abuse material (CSAM) would be found at that address, according to court documents. Donnelly shared the home with his wife Misty and their two teenage sons.
Later, an affidavit of probable cause said, Williams County Detective Derek Bernier conducted a forensic data extraction of a hard drive found on a laptop during that search. It revealed 28 images of suspected CSAM, some involving children as young as toddlers and babies, court documents said.
Three days later, Donnelly, 57, was arrested and charged with seven counts of distribution and possession of prohibited materials. Fifteen months later, on November 9, 2023, another case was filed against Donnelly, this time charging him with 100 more counts of possession of CSAM. According to the affidavit in the second case, more than 6,000 images of CSAM were found on Donnelly’s computer.
At a March 2024 preliminary hearing, Donnelly’s attorney Elizabeth Pendlay argued that the computer where the CSAM was found was used by all members of the family, and the state couldn’t prove that Donnelly was responsible for the material. She called Donnelly’s wife, Misty, to the stand, who testified that one of her teenage sons admitted to her that he had downloaded child pornography on a dare at one point, and that both boys had admitted to searching for pornography using the computer.
“Those are the culprits,” Pendlay said in her closing argument at the hearing, referring to Donnelly’s sons. “What we’re looking at here, Your Honor, is a couple of reckless teenagers.”
But Assistant State’s Attorney Nathan Madden claimed to have text messages proving that Donnelly’s wife and sons were out of town and Donnelly home alone at the time some of the CSAM searches had taken place at the home.
In addition, Madden said, the state had evidence showing that the searches for CSAM started in 2018, when the oldest boy was just 10 years old, making it unlikely the boys were responsible for the illicit content.
During that preliminary hearing, prosecutors referenced evidence from a forensic examination report. Pendlay noted that the defense had yet to receive and review that evidence, despite having made discovery requests in both cases.
A discovery request is the procedure by which a party to a case asks to see the evidence upon which the charges against them is based, which can include witness testimony, documents, investigative materials, including any electronic data and digital evidence the state might have in its possession that could implicate or exonerate a suspect. The other party is obligated to disclose all relevant data and comply with the discovery request.
Donnelly’s trial for both cases was initially set to begin on September 17, 2024, but on August 22, less than a month prior to the trial, nearly 55,000 pages of discovery in the form of digital evidence, including the forensic exam, arrived at Pendlay’s offices.
In a motion to the court on September 4, Pendlay denounced the recent “massive dump of information” and asked the court to dismiss the case or bar the introduction of the evidence at trial.
“The fact that there is tremendous evidence for counsel to review and which cannot possibly be reviewed between now and trial make dismissal appropriate and necessary in this instance,” she wrote.
“The government’s timing with regard to this obscenely large and obscenely tardy forensic data dump runs in gross contradiction to the government’s obvious discovery obligations — and runs in inexcusable and overt contradiction to Gary’s most essential constitutional rights,” Pendlay’s motion said.
She noted that Donnelly faced a maximum possible jail sentence of 595 years and fines in excess of $1 million between the 107 crimes with which he’d been charged.
As a result of the late disclosure, Judge Chas Neff Jr. delayed the trial to May 5, 2025.
Neff rejected Pendlay’s motion to dismiss the case but put Madden “on notice” of “the court’s recognition and disapproval of prior discovery issues. While not rising to the level of either institutional noncompliance or systemic disregard, the State is quickly approaching that level,” Neff wrote.
“Continued issues with discovery, especially on the eve of trial that necessitate further delay of a defendant’s constitutional right to trial, will result in this court’s reassessment of whether such actions…warrant a harsher remedy given the continual pattern,” the judge warned.
Then, on March 19, about six weeks before trial was finally set to begin, Madden filed his own motion to dismiss the case. He had, he wrote in his brief, just received yet another new, potentially significant piece of evidence from investigators at the Williams County Sheriff’s Office — a report from a partial extraction of data from a computer in the Donnelly home, as well as cell phones belonging to Donnelly, his wife, and their two sons.
“The undersigned has repeatedly asked for non-contraband digital data sources in this case,” Madden wrote. “It is unknown as to why all non-contraband digital data sources had not been transmitted over.”
He noted that while the report did not appear to include any “useful content,” the judge’s earlier order had been clear regarding discovery matters, and that he had “concerns regarding the production/timing of discovery materials in this case, as well as the reasoning behind the delays,” as well as about the state’s ability to meet its obligations under the rules of professional conduct and criminal procedure given those delays.
On April 7, Judge Neff granted the prosecutor’s motion to dismiss the case based on the continuing “issues with discovery and untimely disclosures.”
“These are certainly disturbing charges and the court does not take lightly dismissing these cases, given the nature and scope of the allegations,” Neff wrote.
“However, the court was clear in its earlier order that discovery should be complete based on the age of these cases, when the evidence was seized, and the fact that one of these cases had a rare, full-day contested preliminary hearing…A continuance is no longer the appropriate remedy,” he said.
“While the court is reluctant to dismiss serious charges, the facts and circumstances of this case, and the position of the State, warrant such dismissal,” he concluded.
Pendlay told The Forum prosecutors “repeatedly failed to meet their obligations” in the case.
“Gary was presumed innocent,” she said. “At no point was there a finding to the contrary, or an opportunity for a finding to the contrary.”
A spokesman with the Williams County Sheriff’s Office said “a lot of hard work and hours” went into the agency’s investigation into Donnelly and that the dismissal was “obviously not the outcome we would’ve liked to see.”
“We’re not sure exactly why they (prosecutors) made the decision they made,” he said of the state’s motion to dismiss. He referred any further questions to the state’s attorney’s office.
Madden refused to comment on the case, but Williams County State’s Attorney Jakaan Williams said the decision to request the dismissal was “not because we didn’t feel our case was a strong one or that we couldn’t win it.”
“Investigations into cases like this are intricate and complicated,” Williams said. “But because of delays in that information coming to us from law enforcement, the prosecutor felt he could no longer ethically go forward with it, due to our obligations for timely disclosure.”
Because Neff dismissed both cases againt Donnelly “with prejudice,” they are both considered permanently closed in North Dakota state court.
