Hearing for retrial gets underway in rape case

BY COLBY FRAZIER
DAILY SOUND STAFF WRITER

Two months after being convicted of raping a UC Santa Barbara student, Eric Frimpong walked into a packed courtroom yesterday dressed in orange and blue county jail issued clothing with his feet and hands shackled.
Frimpong’s defense attorney, Robert Sanger, filed a motion in January requesting a new trial for the former UCSB men’s soccer player, who a Santa Barbara County Jury found guilty of raping a female student on an Isla Vista Beach on Feb. 17, 2007.


In the motion, Sanger argues that a series of errors were made during the trial, which constitute the need for a retrial.
But Deputy District Attorney Mary Barron recently filed her opposition to Sanger’s motion, detailing exactly why she does not think that is the case.
Superior Court Judge Brian Hill, who oversaw the trial, will make a decision as to whether or not there should be a new trial in the next couple of days, after both sides have had the opportunity to question and cross-examine witnesses.
But before that could get underway in his Department 2 courtroom, Hill told the crowd exactly how he saw the case during trial.
“In my 27 years of practicing law, I have not seen a rape case with so much incriminating, credible and powerful evidence absent a defendant confessing to the crime,” Hill said. “In my view it was a fair trial but the purpose of this hearing is to decide if that was the case.”
Hill said if there was any piece of evidence that was precluded from the trial, or that would have swayed the jury one way or another, he’ll order a new trial.

The defense’s dental expert

Sanger wasted little time getting to the heart of his motion for a retrial, which is the lack of testimony from Dr. Charles Bowers, a Ventura dentist who Sanger hired to testify during the trial about bite marks left on the victim’s cheek and buttocks, but fell ill on the day he was supposed to be in court.
Bowers’ testimony sharply conflicted with that given by Dr. Norman Sperber, who testified for the prosecution during the trial.
With molds and pictures of Frimpong and the victim’s boyfriend’s teeth on the overhead projector, Bowers said he believes Sperber analyzed the bite mark backwards, mistaking the top teeth with the bottom teeth.
“I didn’t agree with his opinion,” Bowers said of Sperber.
During the trial, Sperber said the bite mark could have come from Frimpong and that it did not appear to belong to Benjamin Randall, the victim’s boyfriend at the time.
“I felt he could not be ruled out as having not inflicted that bite,” Sperber said on Dec. 12, 2007.
But with the bite mark flipped around, Bowers showed that it is Randall’s teeth that line up more closely with the bruises on the woman’s cheek, not Frimpong’s.
Focusing much of his analyses on a protruding tooth next to lower middle-right tooth, Bowers placed transparencies from both men’s mouths onto the bite mark — something that Sperber did not do during the trial.
The result provoked a significant amount of noise from the crowd, which consisted mostly of Frimpong supporters, many of whom were members of the UCSB men’s soccer team.
Bowers pointed out that Frimpong’s teeth did not appear to line up as close with the bite mark and the arch of his upper and lower teeth were both narrower than the bruise. But in both cases, Randall’s teeth appeared to match up much more closely, he said.
“I would rule out Mr. Frimpong as a possible biter,” Bowers said. But Randall “could have been [the biter].”
But like Sperber, Bowers noted that the bite mark on the victim’s cheek is somewhat vague, and on a scale of one to six that is used by forensic dentists to describe the quality of bite marks, this is a one.
“There’s no doubt that this bite mark is ambiguous in many respects,” Bowers said.
While Sanger placed much emphasis on the importance of both Sperber and Bowers’ testimony, Hill said that he didn’t view it the same way.
“That evidence was not the most damaging against Mr. Frimpong,” Hill said of Sperber’s testimony. “I didn’t hear it as [being] tremendously powerful.”
Sanger however, disagreed.
“I think the bite mark evidence is the most significant in the case,” he said.

Cross-examination

Barron wasted little time during cross-examination to question Bowers about how he could come to an opposite conclusion of not one, but three other dental experts, two of who were on hand yesterday and will likely testify today or Monday.
Referring to one of the other dentists, Barron said to Bowers, “he orients the bite mark 180 degrees different than you do… Does any of that cause you to question your opinion?”
As he did whenever Barron asked about the other dentist’s opinions, Bowers answered with a snide response.
“I’m not surprised that there is difference of opinion in this case,” Bowers said.
Barron then raised questions about Bowers’ experience as an expert witness, noting that he has testified in court hearings not more than 16 times, while Sperber has done so more than 100 times.
“He talks about it all the time,” Bowers said of Sperber’s resume.
Barron then asked Bowers if he has a problem with Sperber and if her questions were annoying him because he was rolling his eyes.
“We all know each other very well,” Bowers said of his fellow dentists.
Barron asked Bowers about an opinion he rendered on the bite mark on Dec. 13, 2007 through a letter that he mailed on the day he became too ill to testify and the day after he had an opportunity to examine the molds and create transparencies.
The prosecutor said the letter read in part, “I cannot exclude Mr. Frimpong or Mr. Randall.”
Barron wondered whether or not Bowers mentioned the contents of this letter to Sanger during a telephone conversation the men had that same day, during which the dentist told Sanger he wouldn’t be able to testify.
Hill didn’t allow Barron to pursue this route too far, but in an effort to show the argument’s validity, the prosecutor said, “The offer of proof is that the defense opted to not call Dr. Bowers based on the fact that he could not exclude Mr. Frimpong.”
Bowers will continue with his testimony today and it is expected that a juror, who provided a declaration to Sanger saying she believed the verdict was wrong, is also expected to testify.

Judge Hill comments about critics, media and the crowd

Before Hill allowed the proceedings to begin, he thanked the crowd for attending and addressed some of the criticism that has been aimed at him and others involved in the case since Frimpong was convicted.
“Clearly criticism of the criminal justice system is something that makes this system work better,” he said. “We encourage criticism.”
Hill credited those in attendance, but questioned why the courtroom wasn’t stacked to capacity when the victim testified, or when it was revealed that the victim’s DNA was found on Frimpong’s penis.
The judge went through a list of other evidentiary items that he said have not been the focus of criticism, which the public simply did not hear about, either because they were not disseminated in the media, or people did not attend.
“It would have been helpful to have more people [in the courtroom] during major sections of [the victim’s] testimony,” Hill said, adding that there were only a handful of people in the courtroom then.
Hill did allow cameras in the courtroom yesterday; saying part of his reasoning was based on his feelings that an open courtroom should be just that.
“I think it is important that cameras are in the courtroom,” he added.
While welcoming criticism and the positive impacts it could have on the justice system if delivered in the right way, Hill said it has the opposite effect if those offering up the criticism are doing so simply based on opinion.
When “unfounded opinion and misinformation is disseminated,” he said. “It does a disservice to the criminal justice system.”
Hill defended the jury that found Frimpong guilty, saying they were carefully selected and made their decision based on all of the evidence.
“We had 12 people in the community who knew absolutely nothing about the people involved in this case,” he said. “Obviously the jury saw it the way I saw it.”
But with that, Hill pledged to allow the attorney’s as much time as they need to clear up the issues that are at hand.
“We’re going to take whatever amount of time it takes to take care of these issues because they’re important issues,” he said. “The ultimate goal here is to provide a fair trial to both sides.”