Monday, June 11, 2012

Man accused of rape might have been sent to prison for life if the defense team hadn't uncovered last minute evidence showing a key prosecution witness lied: why didn't the prosecutor uncover it?

A troubling case is in the news in Cleveland. A man accused of rape might have been convicted and sentenced to life imprisonment if it weren't for a last minute miracle. As the trial was coming to an end, the man's defense team discovered that a key prosecution witness apparently lied under oath, and that the prosecutors made representations to the court based on the witness' lie. 

This is an important case that deserves more recognition than it is getting.  Here is the full story:

Earlier this year, a defendant was on trial for allegedly sexually assaulting his former stepdaughter and giving her genital herpes. If convicted, he faced a mandatory life sentence.  The trial was nearly over when the defense was able to produce medical records showing that the girl had been treated for herpes -- likely from sexual contact -- years before the alleged assault, and before the defendant had access to her. 

The mother, who was involved in a bitter custody dispute with the defendant, had testified that she did not recall any such infection or doctor visit -- contrary to testimony from her own mother and to defense arguments.  The evidence that the defense uncovered suggested that the mother had lied on the stand.

As the Cleveland Plain Dealer succinctly put it: if the mother's testimony had stood unchallenged, it might have sent an innocent man to prison for life.

Judge Michael Donnelly, who presided over the trial, acquitted the defendant from the bench but didn't stop there.  The judge said it was "particularly troubling that the false nature of (the mother's) testimony was only uncovered through the diligence of a well-financed defense team with paid investigators. The majority of the criminal defendants facing similar charges are not afforded this benefit."

The judge noted that the male and female prosecutors who tried the case made "certain factual representations" based on information provided by the witness that "was later revealed to be patently false."

What does that mean? The Plain Dealer explained it could mean one of two things: "That could mean that they [the prosecutors], too, were duped. Or it could mean that the Prosecutor's Office did not sufficiently vet witnesses or look hard enough for the potentially exculpatory evidence that later surfaced."

Judge Donnelly asked the court's administrative judge for a special prosecutor -- independent of the district attorney's office -- to consider criminal charges against the witness, the mother of the alleged victim.  Judge Donnelly said he had no reason to believe that assistant prosecutors who handled the case, Jennifer Driscoll and Daniel Cleary, had "acted in any manner other than with good faith in pursuing the charges." But the judge said he feels a special prosecutor should look into the matter, rather than the prosecutor's office, to "protect the integrity of the investigation."  Donnelly said that he expects the assistant prosecutors and their supervisors to be interviewed as part of the investigation and that those interviews should not be performed by a colleague.

Cuyahoga County Prosecutor Bill Mason is bristling and has mounted a resource-draining effort to prevent a special prosecutor from being appointed. He does not understand why any prosecutors in his office would have a conflict, except those involved in the original rape case.  Nevertheless, in late April, the court's administrative judge appointed a former judge, Robert Glickman, as special prosecutor. Mason challenged that decision in the Ohio Supreme Court. The next day, based on evidence gathered by the district attorney's office, a county grand jury indicted the  rape-case witness on one count of perjury. Then, the administrative judge rescinded her special prosecutor appointment pending a hearing. And then Mason asked Chief Justice Maureen O'Connor to disqualify the administrative judge from the matter.

If County Prosecutor Mason's office had expended as much effort to uncover the facts in the rape trial as it is expending to prevent a special prosecutor from being appointed, it might have uncovered the falsehood that the defendant was forced to discover. Mason "should want to get to the bottom of what went wrong in the case," the Plain Dealer correctly noted, "and stop continually throwing up roadblocks. An independent investigation would only enhance the credibility and integrity that Mason claims are the hallmarks of his office."

One final note: in his May 24, 2012 news report on this matter, Plain Dealer writer Peter Krouse wrote: "The Plain Dealer does not identify rape victims. To protect the victim in this case, the newspaper also will not name her mother."

Based on the policy of the Plain Dealer, it was appropriate to withhold the accuser's name since she might be a rape victim. However, it was not appropriate to bestow the "victim" mantle on her under these circumstances. Mr. Krouse should have called her the "alleged victim" or "the accuser."  Words matter, and by labeling the accuser a "victim" before an adjudication of guilt, and especially in light of the apparently materially false testimony that supported the prosecution's case, Mr. Krouse has impliedly suggested that the allegation was factual.  It might have been, but we don't know. Use of the "victim" label under these circumstances does a disservice to (1) the presumptively innocent who are accused of such crimes since, by necessity, they must be guilty if their accusers are, in fact, "victims"; (2) actual rape victims, because we trivialize rape when you include among its victims women and men who might be false accusers; and (3) the readers of the Plain Dealer, who are entitled to accurate reporting but receive something less than that when a writer unilaterally transforms an accuser into a "victim."