Wednesday, September 21, 2011

State suppresses evidence that might have cleared man of sexual assault charge

This post raises important issues. In DeSimone v. State of Iowa, No. 09-0844, 2011 Iowa Sup. LEXIS 68 (2011), the Iowa Supreme Court ordered a new trial for David R. DeSimone who was convicted in 2004 of sexually abusing a 17-year-old girl. The girl is referred to in the court's opinion only as "Samantha." The court granted a new trial because prosecutors withheld evidence that would have impeached the testimony of a prosecution witness and could have led to a different verdict.

What happened is chilling, and a gross miscarriage of justice: Samantha claimed that she attended a party on the evening of October 16-17, 2004 at DeSimone's house and that, thereafter, he raped her in his bedroom. According to the court's opinion: "After intercourse, Samantha put on her clothes and quickly ran out of the house. . . . She stated a car almost hit her when she ran across Camanche Avenue, the street outside of DeSimone's home. She eventually ran to a nearby Hy-Vee grocery store."

The State did not present any DNA or medical evidence to substantiate Samantha's claim of sexual abuse. "Indeed," the court wrote, "there was none." The State's case rested solely on the credibility of Samantha (and Samantha's testimony was rife with inconsistencies) and three corroborating witnesses.

At trial, it was revealed that Samantha was in contact with people not only familiar with DeSimone but who had reason to dislike him. For example, Samantha previously lived with the niece of DeSimone's estranged wife. The neice had previously made sexual abuse allegations against DeSimone.

The real problem concerned a prosecution witness named Nicole, an eighteen-year-old high school student who had known Samantha for about two months prior to trial. They met through a mutual friend.  The following is from the court's opinion:

"Nicole testified that one evening [after the alleged assault] she and Samantha were driving on Camanche Avenue, the road DeSimone's home is on, and Samantha told her about the sexual assault. According to Nicole, Samantha's story triggered her memory of an incident that occurred after leaving work early one morning in October 2004 [the month the alleged assault at issue occurred]. Nicole testified she got off work from Burger King at 2:30 a.m. and, while driving on Camanche Avenue, a girl 'ran right in front of my vehicle to try to get me to stop, but I almost hit her, so I swerved.' She stated she did not stop because she was scared and did not call the police because she was not sure what was going on." (Emphasis added -- note the time Nicole claimed she got off work.)

Nicole's testimony just happened to corroborate Samantha's testimony that a car almost hit her as she ran out of DeSimone's house and across Camanche Avenue.
 
DeSimone was convicted, but he couldn't let let go of the fact that Nicole's testimony seemed entirely too coincidental. DeSimone took it upon himself to write a letter to Burger King and ask about the hours Nicole worked on October 16-17. (Remember, Nicole said she worked until 2:30 a.m.)

Burger King responded with a letter and timecard copy showing that Nicole punched out of work at 3:30 a.m. on October 17.

It gets worse. Burger King's letter also stated that Burger King had provided copies of Nicole's timecard to the Clinton Police Department in August 2005, several weeks before DeSimone's trial. The information had not been turned over to Mr. DeSimone's lawyer, and the state put a witness on the stand that it knew or should have known contradicted information contained on a business record.

What was the import of the information provided by Burger King? The alleged victim, Samantha, called 911 at 3:06 a.m. on October 17 from the Hy-Vee store. Therefore, Nicole's timecard establishes that Nicole could not have seen Samantha running across Camanche Avenue on the morning of October 17 as the prosecutor contended.

The court concluded that the prosecution had suppressed the evidence. The prosecution put a witness on the stand who gave testimony that wasn't true, and that was important to the state's case against Mr. DeSimone. Here is what the court said: in "a case that hinges on a victim's credibility, evidence that impeaches one of the victim's few corroborating witnesses is, without question, favorable to the accused."

DeSimone's appeals attorney told a local paper that he believes the suppression of the evidence was accidental. See here: http://globegazette.com/news/iowa/court-orders-new-trial-in-sex-assault-case/article_0b6829b8-db60-11e0-ad8a-001cc4c002e0.html

At the retrial, both Nicole and Samantha will have much explaining to do. The "incredible coincidence that wasn't" should help Mr. DeSimone paint Samantha as an untrustworthy witness.

We don't have any idea whether DeSimone is factually innocent, but allowing Nicole's testimony to be presented when it was contradicted by a business record that was not produced to defense counsel means that a man was sent away to prison for many years for a crime he might not have committed. That should be a concern to all of us.