Second Circuit: Rape Victim’s Psychiatric Consultation Must be Disclosed

July 20, 2016 (Fault Lines) — A prosecutor deliberately withheld documents showing that a rape accuser had suffered from depression, suicidal thoughts, and mood swings for years, even though that would have seriously corroborated the defendant’s story that the victim had acted erratically after they had consensual sex. The Second Circuit reversed.

The woman, G.C., described a truly vicious rape. Alexis Jose Fuentes followed her home from the subway station, waited for her in an elevator, then placed a knife to her neck and told her “don’t do nothing stupid or I’ll cut you.” She took him upstairs to the sixth floor of her building, where he assaulted her vaginally and orally.

Then Fuentes allegedly walked her down to the train station, powered down her cell phone, wiped it down for prints, and told her not to call the police. The woman, G.C., went home and went to sleep.

Fuentes’ account could not have been more different. He testified that he talked with G.C. at an arcade and they took a train together to his apartment. When he told her that a relative was living with him, so they’d have to be quiet, she suggested they go to her place. Then, they had consensual sex, although the condom they used had broken.

Afterwards, she walked him back to his train. When he would not commit to seeing her again, he claimed that she asked him if he thought she was a “ho,” and began acting out so extremely that others at the subway station stared at them. Before he left, she told him that he would be sorry.

So the accounts couldn’t have been more different. And the additional evidence each side presented was pretty week. Fuentes had a private investigator speak to G.C. The investigator testified that G.C. agreed that Fuentes had met her at the arcade, but for some reason, it does not appear the conversation was recorded.

Meanwhile, the State brought out the usual bevy of experts who explain why additional evidence isn’t necessary. There was one expert to explain the lack of trauma or bruising. Another to explain why G.C. didn’t tell anyone about the assault until the next day. G.C. herself simply said that if she’d told her mother, she wouldn’t have believed her. G.C. also brought in a high school friend to testify that they had been hanging out at the arcade that night, and she hadn’t seen G.C. go home with anyone.

In the middle of closing arguments, Fuentes’ lawyer started leafing through the State’s exhibits. Suddenly, he noticed a “Record of Consultation,” that, in addition to describing G.C.’s mental state, included the statement that she was “angry at herself because she went home late and put herself at risk.”

The lawyer figured out pretty quickly that these were important facts. For one thing, the document described G.C. as having frequent crying spells, and she had been crying almost non-stop through direct and cross-examination. At a minimum, he might have had the chance to point out to the jury that this was just something she normally did, not the result of a specific trauma.

But the New York Court of Appeals didn’t think it would do much to change the outcome of the case because the defendant’s version of events was “unbelievable,” and because the victim described all the careful steps the perpetrator took to avoid detection (namely, turning her cell phone off and wiping it down). In short, the Court engaged in a credibility contest, decided that Fuentes lost, and to hell with whether the prosecutor had deliberately left out important information.

Fortunately for Fuentes, the Second Circuit Court of Appeals seemed to see the problem. You’ve got two people giving totally different versions of events. It’s not enough, in theory, just to believe one over the other. Hopefully, you’ve got to believe them beyond a reasonable doubt, and it’s a lot harder for the defense to showcase that doubt when you’ve got a prosecutor hiding some of the most fertile ground for cross-examination.

On the other hand . . . if the Supreme Court granted cert on this case, we could be pretty sure what was barreling down the line. A per curiam opinion pointing out that federal habeas courts can’t intervene in state convictions unless they can show that no reasonable judge would agree with the result the state appellate court reached.

Is it any wonder that prosecutors feel so confident withholding exculpatory evidence? Deliberately hide something you know is going to be damning, knowing full well that the test on appeal to force you to retry the case is often almost impossible to meet. Why go through the discomfort and uncertainty of disclosure when you can cross your fingers and hope for the best? And even if the absolute worst outcome happens, the penalty is to try the case again, this time with the disclosure the law required in the first place.

Of course, we don’t know whether Fuentes did it. Whether G.C. is an innocent victim who will be forced to relive her experience because the prosecutor didn’t abide by the rules. All we can know is this: the jury deserved to get the whole truth when it made its decision.

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