March 24, 2013

Life after accusation

Man acquitted of rape wants justice system reform

Rachel Brown
rachelbrown@daltoncitizen.com

— After he was charged with raping a woman, James Green lost his job, spent nearly a year in jail, was treated like a sex offender before trial and says he spent thousands of dollars on his defense.

Then he was found not guilty.

Now with a better job, a cleared name and a chance to rebuild what he lost while he spent two years fighting the accusation, Green said he’s turning his attention toward what changes he hopes to see in the judicial system and in public awareness so others hopefully won’t have to endure what he did.

“The rape shield law definitely needs reforming,” said Green. “I don’t think the rape shield law should go away, but it being used in the manner it was hurts people.”

Georgia’s rape shield law prohibits information about an accuser’s sexual past from being introduced during a trial except in a few instances. Before the law was put in place — intended to protect legitimate victims from being put on a kind of trial themselves for the way they dress, lifestyle practices or certain other factors — judges exercised their own discretion to determine whether information was relevant to the trial.

Under current law, if, for example, the alleged victim is an admitted prostitute who was with other men the day she claims she was raped, and if she was also a known drug user who might “remember” events differently because of that drug use, the rape shield law and other factors, such as a rule that allows first offenders to not have certain information brought up about their criminal records, could prevent a jury from ever knowing those things. Green’s attorney, Richard Murray, said that while he’s glad for the jury’s not guilty verdict in Green’s trial and wasn’t criticizing the judge, he wishes the law was different.

Green maintains he not only didn’t rape his accuser but never had sex with her. Ashley Hinkle, a forensic biologist from the Georgia Bureau of Investigation, testified about several DNA tests performed on swabs taken from the alleged victim, who was a female relative. Hinkle testified that a DNA test that looks only at the male chromosome found Green’s DNA matched the results, but there is a possibility other people would be matches, too. The other tests either showed the DNA was from someone else or didn’t establish identity.

Murray said he was disturbed at the way the rape shield law prevented him from presenting evidence about the alleged victim’s sexual practices that he believed was relevant, and that he said could have offered some answers about the DNA and why the woman was making allegations.

“This is a horrible case to show how unfair the rape shield statute is,” said Murray. “I just think that was such a disadvantage it could have been a travesty.”

Lawmakers haven’t voiced any recent plans to overhaul the rape shield law in any way. Green said he spoke to state Rep. Tom Dickson, R-Cohutta, about his concerns. Dickson, who has been in office since 2005, said he would have to research the matter.

“That’s the only time I’ve had that call (with concerns about the rape shield law),” Dickson said. “I don’t recall that we have really worked with that particular part of the code during the time I’ve been down here.”



Protecting victims, protecting defendants

District Attorney Bert Poston said the rape shield law is intended to protect victims who already have to overcome serious concerns about reporting the crimes.

“The purpose of the rape shield law is to prevent the trial over the defendant’s alleged criminal conduct from instead focusing on irrelevant and often unsubstantiated claims about the victim’s past and thereby to avoid discouraging victims from reporting sexual assaults in the first place,” Poston said.

Murray acknowledges that it’s possible someone who is a prostitute or engages in other activity that society looks down on can still be a victim of rape. He just believes that in at least some circumstances, the jury — which prosecutors have said during other trials is the sole entity to decide about witnesses’ credibility — should be given all of the information.

Green’s bond was initially set at $200,000 but later lowered to $150,000. When he did get out of jail, he had to wear an ankle monitor and was not allowed to leave his house except for certain specific trips such as going to the doctor or to visit his lawyer.

His criminal record includes a charge related to receiving unemployment checks, which Green attributes to a mix-up at the time. Poston said bond was initially denied not because of any past criminal history but because there was concern with Green trying to influence witnesses, an allegation Green said was untrue.

Court records show he was eventually allowed to look for a job, but his bond conditions still prohibited him from being around children and adult females other than his wife. He could go out to eat only at two Dalton restaurants but only if the dinners occurred before 9 p.m. and only if he advised a detective ahead of time.

All that was without a conviction and before he’d had his trial. His conditions were very similar to those of someone who was serving time on probation. Green said he’s received no apology from anyone, and he feels he has no recourse in which to regain what he lost.

He’s researching the possibility of a lawsuit, but suing a defendant who has no financial means can be cost-prohibitive. Suing anyone in law enforcement or the court system is difficult because those officials are protected by a shield that is lifted usually only in cases of intentional wrongdoing. In fact, Poston said he stands by his decision to prosecute Green and believes the grand jury was right to indict him.

In Green’s case, several family members provided statements to authorities questioning what they said was inappropriate sexual behavior over several years, while at least one of the accuser’s family and a former boyfriend said she had lied before about being raped by other men.



Other acquittals

Green isn’t the only person locally who has spent several months in jail and drained several thousand dollars from a bank account fighting accusations only to be found not guilty.

There have been several high-profile cases nationally in which individuals were accused of crimes they were eventually acquitted of, and, in many cases, got public opinion on their side. There was the trial of Tonya Craft, a Catoosa County kindergarten teacher accused of molesting her daughter and two other little girls. There were the Duke University lacrosse players who faced charges that they raped a stripper they hired to entertain them, only to see the charges eventually dropped.

Locally, there have been less high-profile cases in which individuals endured long periods of financial hardship because of a variety of alleged crimes a jury eventually found them not guilty of committing.

Dalton resident Ernest Patrick Cordova stayed in the Whitfield County jail from about May of 2012 until he was found not guilty several weeks ago of raping a woman at a homeless camp.

There is also John Henry, a former Whitfield County resident whose ex-wife accused him of assaulting her and the man she was living with using a gun. Henry said he lost his house, his business and two years of his life fighting the charges before a jury found him not guilty. Henry argued he wasn’t even in Dalton when the crime was supposed to have happened.

Jacob Harrison Ward was found not guilty by a Gordon County jury about a year ago after Calhoun Police charged the Whitfield County resident with using a stun gun on an elderly Walmart greeter. Ward lost his job, lost money fighting the charges, and temporarily lost his freedom.

Ward said he never touched the greeter, a charge which police disputed. They said he even confessed at one point — which brings out another point. A jury’s finding of “not guilty” isn’t the same as finding a defendant innocent, said Poston.



Making a case

The only task juries are charged with, Poston said, is determining whether the evidence they’re shown proves “beyond a reasonable doubt” that the defendant is guilty of the crime or crimes the person is charged with.

“It is not at all unusual for jurors to tell us, after they have voted not guilty, that they believed or even ‘knew’ that the defendant was guilty, but did not believe the evidence was sufficient to prove his guilt,” Poston said.

In some cases, the defendant may have committed the crime and still got off without a sentence. In those cases, even some defense attorneys agree, the accused might think the time in jail and money used to fight the charges were well spent if it gets the person out of an even stiffer sentence.

If the defendant actually committed the crime and happened to get a favorable ruling from a jury, victims might find a measure of comfort in knowing the person at least had to spend some time in jail — even if it was only while awaiting court proceedings — and that the person at least lost a significant amount of money — even if it was to fight the charges rather than to pay court-ordered fines and restitution.

Yet if the defendant really didn’t commit the crime, authorities are responsible for stealing significant amounts of time, money and social status from a person who didn’t deserve to be punished in any way.

In the cases of Green, Cordova, Ward and Henry, prosecutors or law enforcement officials have continued to maintain that the defendants were guilty.

Poston said it’s rarely the case that he finds an innocent person has been arrested, but there are a significant number of cases in which it would be difficult to prove guilt. He said he and a team of experienced lawyers who work for him review each of the roughly 3,000 cases that come before them each year and move forward with prosecution on about two-thirds of them.



Protecting the innocent

Once a person is arrested, there are several layers of involvement before the accused ever has a chance to be convicted.

The district attorney’s office usually must review the facts and decide whether to present the case to a grand jury. Sometimes, Poston refuses to prosecute if he believes there isn’t enough evidence to get a conviction. Other times, he takes the case to a grand jury where citizen members decide for themselves whether to indict.

Even if the district attorney decides to prosecute, a grand jury must in serious felony cases still indict the person for the case to go to court. Such was the case with Green, although Murray claims that “a lot of the evidence didn’t come forward until the case had already been indicted.”

Indictments happen only after a law enforcement officer determines probable cause exists to believe a person committed a crime. In some cases, the officer must first obtain an arrest warrant from a judge who likewise agrees probable cause exists for the arrest.

In cases where an arrest is made without a warrant, a judge must still within 72 hours review the arrest and authorize continued detention.

In felony cases, after an arrest a judge can sometimes deny bond, and that judge is usually different from the judge who signed off on the arrest warrant. In most cases, the defendant enters a plea before the case makes it to trial.

“Less than 1 percent of the cases we receive each year result in jury trials, and most of those trials result in convictions, so the number of not guilty verdicts compared to the total caseload we process is exceedingly small,” Poston said. “Also, recall that the criminal justice system, by design, is intended to err on the side of releasing the guilty rather than on the side of convicting the innocent. The burden of proof at trial — proof beyond a reasonable doubt — is the highest legal standard used anywhere in the world.”

Still, even with so many safeguards in place to protect the innocent, American juries have wrongly convicted American citizens.

The Innocence Project, an organization that works to exonerate wrongly convicted individuals through DNA testing, estimates that between 2.3 percent and 5 percent of all prisoners in the U.S. — at least 20,000 people — are innocent. Since 1989, more than 250 people have been exonerated post-conviction through DNA testing, according to the organization’s website, www.innocenceproject.org.

“More broadly, we know that innocent people are often identified as suspects by law enforcement and that DNA testing often clears them before they go to trial, but that DNA testing is impossible in the vast majority of criminal cases,” according to information on the website.



Georgia’s rape shield

Georgia’s rape shield law — 24-4-412 of the Georgia Code — prohibits the accuser’s sexual past from being introduced into evidence. Green said that while his accuser’s past was kept secret, his own supposed past — including unrelated incidents in which he allegedly behaved inappropriately with other female family members — was brought out for all to see.

At least as far back as 1976, writers in scholarly and professional journals were debating the merits of rape shield laws. Some said the accuser’s promiscuity could be critical to the defendant’s defense, suggesting that an unchaste woman would be more likely to agree to intercourse than a virtuous woman.

Poston said that before the shield law, some judges allowed evidence about the accuser’s sexual past into evidence, and some did not. The law still allows some such evidence in a few cases, such as if the accuser and defendant have a past history, but it severely restricts a lot of other information on the basis that it isn’t relevant.

“If you let all that in, what the defense strategically wants to do is put the victim on trial,” Poston said.

Murray agrees the shield is good in some instances, but not all.

“Because of the rape shield, they bend over backwards against any kind of character evidence coming in,” he said. “That’s not just because of the rape shield, but it’s a huge part of it ...

“I know they want to encourage victims to come forward, but in a situation like this ... she kept him in jail on her word alone.”