Attorney requests new trial for convicted rapist

BY COLBY FRAZIER
DAILY SOUND STAFF WRITER

An attorney representing former UC Santa Barbara men’s soccer player Eric Frimpong filed a motion with the Superior Court on Thursday, asking for a new trial.
Frimpong, 22, was found guilty by a Santa Barbara County jury on Dec. 17, 2007 of the rape of a 19-year-old female student.
In his motion, which was filed on the same day Frimpong was scheduled to be sentenced, Robert Sanger said a number of procedural errors were committed by the prosecution and the court, which resulted in the conviction of an innocent man.
“These issues were subject to contemporaneous objection by defense counsel,” Sanger said in his motion. “However, some of the dire consequences of the errors on the part of law enforcement and the prosecutor have come to light only after the conclusion of the trial. While courts are reluctant to grant new trials, this case cries out for judicial intervention to avoid a life shattering injustice.”
Deputy District Attorney Mary Barron, the prosecutor in the case, could not be reached by phone last night.
While many of the points Sanger raises in the motion were well documented during the trial, some are new and include declarations by juror Ann Diebold, who said she feels a mistake was made and a “miscarriage of justice” has occurred.
“I regret the decision I made finding Mr. Frimpong guilty… I am making this declaration in order to right a wrong,” Diebold said in Sanger’s motion.
The first issue raised in the motion focuses on expert testimony given during the trial by Dr. Norman Sperber, a dentist, who testified that a bite mark on the rape victim’s buttocks and cheek could have been inflicted by Frimpong.
Sperber was quoted in a Dec. 13, 2007 Daily Sound story as saying: “I felt he could not be ruled out as having not inflicted that bite.”
Sanger said in his motion that Sperber’s testimony should not have been heard because the prosecution had sought the opinion of another dentist who did not testify. He also says moldings taken of the victim’s boyfriend’s teeth were not provided to the defense until after Sperber’s testimony, despite having requested them as early as March.
Furthermore, Sanger says, the defense wasn’t able to call its own expert dentist because the man they had consulted, Dr. C. Michael Bowers, had fallen ill when he was supposed to testify.
Sanger notes that after the trial, Bowers concluded his analyses on the teeth moldings and victim’s bite marks and found that Frimpong likely did not inflict the bites.
“Dr. Bowers’ report makes it clear that an innocent man was convicted and that the actual attacker remains free,” Sanger says.
In his motion, Sanger weighs much of his justification for a new trial on bite mark testimony, but he repeatedly said during the trial that this field of forensic dentistry is “not a science,” and attempted to get Sperber to say so on the stand.
Another point Sanger cites as grounds for a new trial is that juror No. 5 was arrested for driving under the influence of alcohol the weekend before deliberations began.
In his motion, Sanger says the juror’s blood alcohol level was twice the legal limit and her statement in a police report that she was sober enough to drive demonstrates a, “Bias regarding the effects of alcohol.”
Sanger notes that in a case where alcohol was a key issue (the victim’s blood alcohol level was .20 when tested on the morning the incident occurred) the juror should have been excused but was not.
Sanger, who called one witness during the trial after the prosecution called 31 witnesses, also said that the jurors were “rushed” as a result of repeated declarations by Judge Brian Hill throughout the trial that he believed the proceedings would remain on schedule and conclude by Dec. 18.
Another issue with the jury, Sanger states, is that they were not provided with a CD player to listen to audio recordings entered into evidence and did not receive all of the things they requested from the court during their deliberations, which lasted about eight hours.
“This was prejudicial in that the jury did not get what they requested and simply had the prosecutions best, uncross-examined testimony ready,” Sanger said. “She [Diebold] is certain if they had gone through the transcripts she would have found the answers to her questions there and found a different verdict.”
After yesterday’s hearing, which was heavily attended by Frimpong’s friends and supporters, Sanger declined to comment because he said the case is ongoing.