30 June 2008

A Troubling Sexual Assault Case

The defendant in a case decided by the Colorado Supreme Court on Monday was tried on three different occassions for the rape of three different women. The first two trials resulted in acquittals. The alleged victim in the third case consistently testified after her first communication with the police that her sexual encounter with the defendant was consentual, and claimed that she lied on the first occassion because she feared that she would be prosecuted for prostitution.

Evidence from all three cases was introduced in the third case with evidence from the two prior cases presented before any evidence regarding the case before the jury was offered. The jury concluded that he had been tried in the two prior cases, but the jury was not told that he had been acquitted in the two prior cases.

The defendant was also not permitted to reveal to the jury in the third case that a witness in the third case (a victim in one of the cases that produced an acquittal) was facing misdemeanor charges at the time she testified which prior conduct of prosecutors might cause he to think would be dismissed if she testified as prosecutors wished.

The Colorado Supreme Court reversed the conviction for which the defendant faced sixteen years or more in prison, and ordered a new trial, because the jury was not informed of the prior acquittals despite being aware of the prior trials, and the Colorado Supreme Court also noted that the jury should have been permitted to learn of the misdemeanor pending against the key witness.

Two possibilities in these series of cases are both disturbing.

One is that the defendant was in fact guilty of being a serial rapist. In this case, the prosecution botched the first two cases and is well on its way to botching the third, which was arguably weaker than the first two. The additional evidence the Colorado Supreme Court has held must be admitted will ether leave the prosecution with a considerably weaker version of the same case, or will cause the prosecution to refrain from offering prior act evidence which appears to have been important in the porsecution's ability to secure a conviction in the third case by proof beyond a reasonable doubt. Thus, a serial rapist who has somehow managed to intimate at least some of the witnesses against him, may go free.

Another possibility is that the defendant has been wrongfully prosecuted three times in a row for rapes he didn't commit, or at least, that he has been prosecuted three times for rapes in which there were serious questions about the Defendant's guilt. Moreover, Colorado, like most states, provides no compensation for representation by a private attorney, lost earnings, or harm to one's reputation, when one is charged with a crime and then acquitted. Three prosecutions for serious felonies in the course of a decade, even if they result in acquittals, are enough to financially ruin and destroy the reputation of even a fairly prosperous individual with an otherwise good reputation. The facts in the current case recited by the Court of Appeals, the multiple run ins with the law of some of the witnesses, and the testimony recited by the Colorado Supreme Court suggest that it is possible that the defendant was a repeat prostitution customer, rather than a serial rapist.

Only the defendant and the three alleged victims know what really happened. But it isn't obvious a case brought against the wishes of and contrary to the testimony of the alleged victim, in a case where consent rather the fact that the two had sex is at issue, based largely on the strength of two prior prosecutions in separate incidents that resulted in acquittals, is the best way to use scarce prosecutorial resources, regardless of the truth.

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