Thursday, December 13, 2007

Prosecution rests case in Frimpong rape trial


After hearing testimony from dozens of witnesses over the past two weeks in a rape trial involving a former UC Santa Barbara men’s soccer player, the prosecution rested its case yesterday in Superior Court after hearing the highly contested testimony of Dr. Norman Sperber.
Sperber, a dentist who offered testimony about bite marks on the alleged victim’s cheek and buttocks, said they could have come from the defendant, Eric Frimpong.

“I felt he could not be ruled out as having not inflicted that bite,” Sperber said of Frimpong.
Frimpong has been charged with one felony count of forcible rape stemming from one alleged victim and a misdemeanor count of sexual battery related to a second alleged victim. Frimpong has pleaded innocent to both charges.
Sperber noted that the process of analyzing bite marks on human skin is not a perfect science, and there could potentially be other people who may have the ability to inflict a similar bite mark.
While Sperber said he could not rule Frimpong out as the biter, he said the bite marks did not appear to belong to Benjamin Randall, who was intimate with the alleged victim at the time of the incident, which investigators say occurred in the early morning hours of Feb. 17.
“It would have been impossible for him to have caused that bite,” Sperber said of Randall.
With molds of Frimpong and Randall’s teeth on the overhead projector and pictures of the abrasion on the victim’s skin, Sperber said he based his conclusions on the two front, upper teeth of the bite mark.
He pointed out that whoever inflicted the bite mark had protruding front teeth that stuck out from the others by about two millimeters, but were themselves straight and not curved – a somewhat unique quality that he said sets Frimpong apart.
Sperber said the mold of Frimpong’s teeth clearly showed a jutting out of the upper front teeth, which Randall’s mold did not.
But while Sperber said these two teeth set Frimpong apart slightly from Randall, the rest of his teeth and his mold appeared to be “symmetrical.”
When Frimpong’s defense attorney Robert Sanger began his cross examination, he wasted little time attacking the terminology Sperber used to describe his determination that Frimpong could not be “ruled out.”
Sanger asked Sperber if the appropriate term, as defined by the ASFO (American Society of Forensic Odontology), when something can’t be ruled out, is “inconclusive.”
Sperber said he personally doesn’t like to use the term inconclusive, but when Sanger read through a list of four ASFO classifications, inconclusive being the fourth and least specific, Sperber agreed that it is a commonly used term.
Sanger called Frimpong’s mouth mold, “unremarkable” and noted that in earlier reports, Sperber had also used that term to describe his client’s mouth.
After Sanger cleared up the terminology issues, he began bringing up aspects of Sperber’s past.
Sanger said Sperber once claimed, while giving testimony in a separate court case, that he was the chief forensic dentist for the FBI. Sanger said the FBI sent a letter to someone involved with the case saying the position didn’t exist and that Sperber once was on an advisory committee for the National Crime Information Center.
Sperber said he realized the position didn’t exist and said, “That was a misstatement.”
In another case that involved a man who was convicted of murder after two separate trials and later exonerated by DNA testing, Sanger said Sperber was involved at some level in both trials and was of the opinion that a bite mark on the victim did not belong to the defendant.
Sperber said a doctor whom he was mentoring offered testimony during the first trial, and Sperber said he urged the doctor to “stay away from the case, that the bite mark didn’t match.”
The doctor testified anyway and the man was convicted. While it was never fully resolved yesterday in court, Sanger questioned whether or not Sperber ever told anyone he believed the bite mark did not belong to the defendant.
Sperber did say he testified in the second trial and told the court he did not believe the bite mark matched the mouth of the defendant.
Sanger brought up another case, in which he said Sperber claimed a bite mark was human and later, after seeing additional crime scene photos, said he believed a dog could have inflicted the bite.
While Sanger harped on Sperber’s past as much as Judge Brian Hill would allow, he also asked Sperber how much he was getting paid by the District Attorney’s Office to testify.
“Of course I’m being paid,” Sperber said. “I don’t do this gratuitously.”
While he didn’t say exactly what he was going to be paid for his appearance yesterday, he said he commonly makes $300 an hour while analyzing evidence and $400 an hour for testifying.
Sanger asked Sperber if anyone in the DA’s office had told him he had been selected because he was free, to which Sperber didn’t answer.
Sanger said it was his understanding that Sperber was not being paid.
Hill piped in and said, “The court has some concern that two times information hasn’t been provided to the defense.”
The first time information was withheld from the defense was when investigators sought the opinion of local dentist Dr. Raymond Johansen, who the investigators decided not to use as an expert witness.
Not using Johansen is fine with the court, but investigators still are required to document their meeting with Johansen and communicate it with the defense, which was not done.
“This is information that clearly should be turned over well before the trial,” Hill said.
Barron told Hill she was unaware investigators sought Johansen’s opinion.
The defense’s first witness was Dean Warden, a senior criminologist for the California Department of Justice laboratory in Goleta.
Warden, a forensic alcohol supervisor, tested a sample of the alleged victim’s blood, which registered at .20. The legal threshold used in California to determine if someone is too drunk to drive is .08.
Because the sample of blood was taken at 5:37 a.m., it had likely been several hours since the woman had taken a drink. As a result, Warden indicated that her blood alcohol level had likely decreased since the time of the alleged rape.
Sanger presented a chart prepared by Warden that showed roughly how high a person’s blood alcohol would have to be at 12 a.m. in order to be at .20 nearly six hours later, assuming that person hadn’t taken a drink since midnight.
Using two different equations that factored in a different rate of “burn off” of alcohol per hour, one said a person’s blood alcohol level would have to be as high as .31 at midnight in order for it to be at .20 several hours later, while the second formula showed a blood alcohol level of .28 at midnight.
“All those are very high blood alcohol levels are they not?” Sanger asked Warden.
“That’s getting up there,” Warden said.
Warden, who said he has participated in tests to see how alcohol impairs a person’s motor skills, emphasized that different people are impacted by alcohol in different ways.
He said impairment, at some level, is registered immediately after a person begins drinking. But he said levels of impairment vary greatly and a person with a blood alcohol level of .08 may not be totally impaired.
“I’m pretty notorious in this county just for that state of mind,” Warden said.
During her cross examination, Barron asked Warden if it was true that the only thing anyone knows for sure about the victim’s blood alcohol level was what it was when it was tested.
“That’s correct,” Warden said, noting that the breakdown of alcohol “burn off” is not an exact science but is “as good as we can get.”
While Barron was asking Warden about how people react differently to varying amounts of alcohol, she asked if he knew whether or not a person could behave relatively normal with a blood alcohol level of .20.
“There are no real studies that high because it’s kind of unethical to give people that much alcohol,” Warden said.
The defense is expected to continue questioning through today and conclude sometime on Friday.

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