A Letter From Eric.

February 28, 2008

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A former UCSB soccer player convicted in Santa Barbara County Superior Court of rape in December has filed a motion for a new trial, citing testimony of a juror who says jurors were not given all the readback testimony requested during deliberations, and new evidence by a dental expert that, the defense says, exonerates its client.

Deputy District Attorney Mary Barron told the News-Press on Monday that she is preparing a reply to the motion in the Eric Frimpong case. The motion for a new trial will be heard at 8:30 a.m. on Feb. 28 — the date scheduled for Mr. Frimpong’s sentencing.

A motion prepared by defense attorney Robert Sanger argues Mr. Frimpong was denied a fair trial, due process of law, the right to experts to assist counsel, equal protection of the law in violation of the Fifth, Sixth and Fourteenth amendments to the United States Constitution, the California Constitution and case and statutory law.

The defense claims a new trial is indicated because the prosecution withheld bite-mark evidence that exonerates Mr. Frimpong during the trial in violation of Brady v. Maryland, a 1983 landmark case.

During the trial, the prosecution called a dental expert to testify as to the bite marks photographed on the victim’s face the morning after the incident. The victim had testified her attacker bit her on her cheek during the course of the rape. The prosecution’s expert testified he could not exclude Mr. Frimpong as having made the bite mark.

The defense objected at trial that the prosecution first contacted a different dental expert than the one called to testify.

This witness testified, outside the hearing of the jury, that he told the detectives the “best” he could do “would be to not exclude Mr. Frimpong since the bite mark was vague,” as stated in the motion.

The defense argues that the prosecution’s failure to make available to them the castings of the victim’s friend Benjamin Randall, until after the conclusion of the expert’s testimony late in the trial, made it impossible to conduct a forensic analysis from anyone before the end of the trial.

The defense also argues its expert, Dr. C. Michael Bowers, was not available to testify because he became ill.

Since the trial, Dr. Bowers has evaluated the materials and exonerates Mr. Frimpong, the motion states.

“Dr. Bowers has concluded that Mr. Frimpong could not have made the (bite) mark. . . . In other words, when Dr. Sperber (the prosecution’s witness) testified that the (teeth) transparencies were not ‘helpful,’ the truth was they showed the opposite of what he testified to at trial. Dr. Bowers’ report makes it clear that an innocent man was convicted and that the actual attacker remains free,” according to the motion.

Another issue raised in the motion by the defense is the claim that jurors rushed their deliberations and did not take time to consider the evidence based on pressure to conclude the trial on or before Dec. 18.

Juror Ann Diebold states in a declaration that she regrets finding Mr. Frimpong guilty.

“I did not feel we were given all the testimony we asked for and in the manner we asked for the requested materials,” Ms. Diebold stated in her declaration attached to the motion.

She said jurors were read the victim’s direct testimony, but when the judge asked if they wanted to hear the victim’s cross-examination, which would take time to gather, the jury foreman said they had enough for now. The jurors were never able to hear the readback of the cross-examination and other information they requested, she stated . Another issue the defense raises in the motion is the contention that juror No. 5 should have been excused for misconduct.

The motion argues that this juror could not have been impartial given the fact she was arrested for driving under the influence during the course of the trial.

Mr. Frimpong’s attorney also argues that “Deputy District Attorney (Mary Barron), committed a Griffin error in her closing argument that Mr. Frimpong had 10 months to come up with an alibi and failed to deny committing the alleged rape.”

Griffin v. California is a landmark case that stands for the rule that the prosecution cannot comment on the defendant’s failure to testify.

Mr. Frimpong did not take the stand during the trial.

e-mail: kstinson@newspress.com