"On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old
defendant was home, drinking beer, and playing video games, when his son Theo brought
home three friends and a large bottle of vodka. The group of four -- all of whom were
about 20 years old -- consisted of defendant’s son, the son’s new girlfriend, Karolyn
Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is
the victim. They had a plan to get drunk. . . ."
Oh my.
So many different bad things can happen in a situation like this. In this particular case, the offense for which defendant was convicted is rape of an unconscious person.
The evidence against the defendant is not, however, as strong as you often see. There are no eyewitnesses to the offense. The victim has no memory of what transpired. There's no bruising or other unambiguous evidence of force. There's no confession, either, even after a subsequent pretext call (in which the defendant continued to insist that he, too, had no memory of what transpired, although he often says that he's "sorry" that the victim was apparently raped while unconscious).
Sure, there's some very minor evidence against the guy. His slippers were near her bed. Stuff like that. Evidence that might perhaps be explained by the fact that the victim vomited, passed out, and had to be taken care of by somewhat.
But the strongest evidence against the defendant was -- as you might imagine -- the DNA evidence. That's what nails him.
With one not-so-tiny problem: The DNA does not match.
This is probably why the first jury ends up hung. But the second jury convicts. Because while the DNA doesn't perfectly match, it definitely comes close. The prosecution's witness compares the DNA sample inside the victim with the defendant's DNA at the standard 15 places and they match at 14 of 'em. But not at the 15th. The expert has a "crossover" theory about the 15th location, but admits that there's utterly no scientific evidence for that theory.
So that's a problem. The DNA doesn't even match.
But it comes close. And while you might think that "close" only counts in horseshoes and grenades, here, close is close enough. For the jury as well as for the Court of Appeal. It's enough evidence to even establish guilt "beyond a reasonable doubt".
Is the "slipper" evidence or the pretext call really that strong? Nope. No way. But I think Justice Murray gives a pretty accurate description of why the defendant ultimately gets convicted (and that conviction gets affirmed) when he says:
"The DNA testing of the
sperm fragment from the vaginal swab matched defendant at 14 loci. It is uncontroverted
that the major profile is not Beto and it is not defendant’s son. That leaves the only other
male in the house, defendant. Unless there was some unknown male at the house who
had intercourse with the victim who had the exact same profile at every location except
one, where a potential triallele is located, then it must have been defendant who was the perpetrator."
So close is indeed good enough. Because everyone else isn't even close.
