I was initially skeptical. A minor tells her friend that her stepfather has repeatedly molested her. Ultimately the police are called. The minor recants, including at trial, but that may be due to pressure from her mother. At trial, the stepfather is convicted.
Did I think the stepfather was definitely guilty? No. But I wasn't on the jury. Seems like a reasonable jury could come out either way. Maybe the stepdaughter was making up the story to get sympathy. Or maybe she was indeed molested. That's why we have juries.
I was, however, skeptical about the stepfather's claim on habeas that he had ineffective assistance of counsel. It seemed to me that the defense attorney did a pretty good job of getting the minor to recant and casting doubt on her story. Sure, the defendant was still convicted. But even a good defense fails most of the time. And, yes, the attorney was employed by the Pacific Law Center. Personally, I would tend not to employ firms who heavily advertise on television when I'm facing over a decade in prison. But here, despite what I'm certain was a hectic caseload, it seemed that the defense attorney did a decent job.
But then I read on, and Justice Benke convinced me that my initial impressions were wrong. There were two pieces of evidence that seemed pretty important here. First, the prosecution expert testified that even though the minor showed no evidence of trauma or physical changes upon a sexual examination, that wasn't unusual, since even if she had had sex with her stepfather 100-200 times (as she claimed) one wouldn't expect to see any tearing, injuries, etc. That seemed plausible to me. But on habeas, the defense has an expert that says that there may not be any tearing, but that you can nonetheless definitely tell if someone's either a virgin (as the stepdaughter claimed at trial) or if she's had sex hundreds of times. That "that is the whole point of using a colposcope." And the expert says it in a way that makes it sound very much true, not merely something said by a hired gun. The defense counsel -- to his credit -- doesn't try to make up an excuse for not getting such an examination, and it might well have made a difference. If the exam showed that the stepdaughter had not, in fact, had a plethora of sex, that would tend to support substantially the stepfather's defense.
Now maybe the defense counsel didn't order an examination because he knew defendant was in fact guilty. But there's no evidence of that. And if, in fact, the counsel simply didn't investigate this point, that seems like a pretty big error. One that might well have made a difference at trial.
So that was one issue about which I didn't know much initially but that seemed like it might well have justified a new trial once the Court of Appeal let me know the scoop. The second point just seemed weird from the get go.
The stepfather had herpes. The stepdaughter did not. That seemed strange to me. I'd have thought that if a guy with herpes has sex with someone several hundred times, that'd likely be passed on. But the prosecution expert testified that there'd only be a five to ten percent chance of catching it even after all that sex. Really?! That just didn't comport with my (admittedly uninformed) understanding of the probabilities. But the defense counsel consulted with an expert who admitted that transmission of herpes wouldn't be "certain" even after all that sex, and so the prosecution expert went essentially unrebutted.
The truth, however, seems quite a bit different. There's a defense expert on habeas who says that the true rate is around fifty percent each time. That seems high to me; the Court of Appeal seems to think that this means that the rate of transmission is virtually certain (i.e., 50% each time for 150 times = virtually 100%), though we may be ships passing in the night here; I'm not sure the expert means getting herpes as opposed to being exposed to the herpes virus. Regardless, it does seem like the five to ten percent figure is wrong, and the defense counsel's failure to provide contradictory information a total (and inexplicable) mistake.
Assume, for example, that the true transmission rate is five percent; i.e., every time you have sex with someone with herpes, you've got a five percent chance of catching it. My gut tells me it's higher, and I'm pretty confident most people act like it's indeed higher, but let's be conservative. If you have sex with a carrier 150 times, the chances are less than one in a thousand that you'll remain uninfected. Which, in the context of this case, sounds like it would certainly create reasonable doubt, no? So this seems vital, and I don't see why the defense attorney couldn't put on some competent testimony here.
Does that mean that the defendant is totally innocent? I don't know. Because I don't know the true rates here. But the point is that his jury didn't either. That seems to me to justify a new trial. Because this is not a case where the evidence is crystal clear. Far from it. And before we put a guy away for 13 years, I think we need to have more certainty in the process than we do here.
