By Misha Berman and Monica Velez
Prosecution’s Closing Arguments – by Misha Berman
“This is not a popularity contest of who you like the best. Your job is to judge fairly and humbly,” pointed out Deputy District Attorney Jonathan Raven while he was making his closing arguments to the jury.
During the trial for Defendant Lang Her, at 8:50 a.m. Judge Paul Richardson began by going over the rules and steps the jurors would have to follow when they made their “final deliberation.”
He said to “follow the laws,” which included not to research information about the trial on the internet and not to show the notes they take to other people.
“You must not be biased against the defendant just because he has a criminal charge. He is innocent until proven guilty,” said Judge Richardson.
Judge Richardson also told the jury that whatever the attorneys said, including what they said in their closing and opening points, should not be considered evidence and that the only statements that should be considered as part of evidence are what the witnesses say.
“You should disregard questions that were objected (to), (were) off record and when court was not in session,” stated Judge Richardson.
Judge Richardson then went on to describe what Mr. Her is being charged with. He pointed out that the charges against Mr. Her require “criminal intent.” Judge Richardson then went over the different charges.
“The Defendant is being charged on count 1 of rape of an intoxicated woman, count 2 of rape of an unconscious victim. He can only be guilty if he intended to commit the crime,” stated Judge Richardson.
Mr. Raven was then called to make his final statement. Raven started out by saying that there are only two possible conclusions in this case.
“Either he took advantage of a former friend or he is falsely accused. There is only one truth, someone is lying,” said Raven.
Raven then went on to say how “the People’s perspective” feels that what “Y.X.” said never changed and that her statements are all confirmed by the UC Davis Police and Davis Police. Mr. Raven pointed out, however, that he felt Mr. Her’s story changed and had been disproven by “common sense.”
“There are usually 3 defenses in rape cases – no rape, not raped by me, or it was consensual. He first said there was no sex but when evidence disproved that, he changed it to consent,” said Raven
He then went on to say that this is not about which person is more likable, but it is for them to conclude “fairly” and objectively what happened on July 9, 2012.
Mr. Raven then showed a slide depicting what allegedly happened on July 9 or 10 of 2012, and what Mr. Her claimed versus what Y.X. claimed.
“Defendant claims there were drinking games, all were pretty drunk, passed out on couch,” described Raven.
Mr. Raven pointed out that at around 12 a.m. to 1 a.m. Y.X. said that she tried to move her arms and legs but she couldn’t move them and felt as if she were being penetrated.
“She then remembers her pants being pulled up and saw the person pick up his phone that lit up and she realized it was Lang,” said Raven.
Raven pointed out that Y.X. couldn’t have given consent because she was too intoxicated, and Her knew that. He also pointed out that she couldn’t have fought Her off because she was incapacitated.
“If the defendant is voluntarily intoxicated it is not a defense to counts 1 and 2,” asserted Raven.
Mr. Raven then had the jurors listen to a recording of a call where Mr. Her was talking to Y.X about what happened.
“I was partially awake and I saw you. I know how it feels to have sex because I have had sex before,” said Y.X. in the recording.
Mr. Raven pointed out that, after the recording, Her never said he didn’t do it. He also pointed out how Her, during the recording, paused a lot and thought about what she had said but didn’t really answer Y.X.
Mr. Raven then talked about how all the evidence backed up the fact that Mr. Her sexually assaulted Y.X.
“There is medical evidence, vaginal swabs, she saw things that are consistent with anal penetration. Eye and ear witnesses,” said Raven.
Raven concluded by asking why would Y.X. go through all this torture for three and one-half years and not move on.
“Why go through the medical exam? DNA was matched, there was semen,” said Mr. Raven.
Defense Closing – by Monica Velez
“I am here to tell you that Lang Her is not a rapist (…) buyer’s remorse does not equal rape,” was the opening of defense attorney Christopher Carlos’ closing argument.
The People’s burden of proving guilt beyond a reasonable doubt was the main theme for Carlos’ closing argument. He stressed to the jury that if they had any thoughts of, “What if she’s (the alleged victim Y.X.) lying?” then that is a reasonable doubt.
Carlos explained that there is no in-between when it comes to convicting someone on the basis of beyond a reasonable doubt. He told the jury that they need to be absolutely sure and convinced that Y.X. was telling the truth if they are going to convict the defendant.
The defense reiterated to the jury that Y.X. was lying, and repeatedly reminded them that the only thing the deputy district attorney had on Her was he failed to tell anybody at first that, on the night of July 9, 2012, he did indeed have sexual contact with Y.X.
Carlos compared Her’s situation to Bill Clinton’s, in that they both immediately had the natural human reaction of saying that they “did not do it” after a huge sexual allegation was brought to light.
The defense said that Carlos did not come up with an untrue story, he only left out part of the story, which turned out to be a mistake. Carlos explained that this does not make Her a rapist, only human.
Carlos told the jury that after July 10, 2012, when Y.X. told her class she had been raped the night before, she could not go back from that accusation. He said Y.X. received a lot of attention in the last three years, having her own personal victim advocate, and he said there are many reasons why Y.X. would continue with this lie.
For one, Hmong experts who testified during the trial said it would tarnish the family name. Carlos brought up the fact that Y.X. did not contact the police until two days after the alleged rape, giving her time to come up with a story.
The defense also attacked the demeanor of Y.X. while she was on the stand. He said that Y.X. kept having to be re-asked questions, taking long pauses in between her answers to think about what she was going to say.
“(Y.X.) is willing to say anything to bolster her testimony,” said Carlos.
Carlos said that Y.X. only needed to go to court twice in three and a half years in order to receive all this attention.
“After she (Y.X.) gets all this attention, how could she come up and say she made it up?” asked Carlos.
Carlos went on to attack the government’s case, saying that even though they had an “infinite amount of resources,” they did a terrible job. An example Carlos gave was how the key witnesses who attended the party were not contacted until three years after the incident.
Most of the witnesses did not remember too much of the party, because it happened so long ago. Carlos went through some of the testimonies, saying his “personal favorite” was when a witness said, “I am 100 percent certain Y.X. was not drinking that night.”
That same witness then said that Y.X. was the one who took her intoxicated friend upstairs, rather than the other way around.
Another witness said that they saw Y.X. standing close to Her, putting her hand on his shoulder. Carlos argued that these were some of the key witnesses the government gave the jury to prove Her is a rapist.
There were two different witnesses that took the stand during the three-week trial who shed light on normal reactions of rape victims. Carlos argued that the witness for the People had a “ridiculous” PowerPoint that only backed up what Y.X. said in her testimony, clarifying to the jury that this was not a coincidence but a ploy to help keep the government’s case strong.
The witness for the defense, who testified about rape victims’ normal reactions after being raped, said the top reactions were either “flight or fight.” The witness said that most rape victims would want to immediately leave the situation and avoid the rapist at all costs. Carlos described that Y.X. did the opposite; she stayed in his apartment that night and drove with him in a car the next day when she could have easily left his apartment and walked a couple minutes to a Safeway.
Carlos was adamant at discrediting the police work in this case, accusing Sgt. Ariel Pineda of sloppy and lazy police work, not bothering to contact Her about the case, the last time being in November of 2012.
“Pineda did a terrible investigation,” Carlos said. He argued that the defense was now trying to fill in the gaps of bad police work.
The defense also brought up the fact that Sgt. Pineda falsified the report. Carlos said that after the first written police report was approved and filed is when Pineda went in and changed it to fit his story. Carlos showed the jury the different documents.
Sgt. Pineda had a recording of a conversation between him and Mr. Her, but it was misplaced after he filed it into evidence.
“Pineda is a liar. He lied to you, he lied to us,” said Carlos.
On the last day of evidence in the trial, Carlos had many character references take the stand. He made the argument that bringing in character references opens a door for the deputy district attorney to find a bad character reference. Carlos said that Raven had three people helping him on this case, and if any of them could have found a bad reference the jury would have heard it, and they did not.
“The People are talking through both sides of their mouth,” said Carlos.
Carlos explained that if the jury has any doubt that Y.X. is telling the truth, and if they believe Her, they must say that Her is not guilty.
People’s Rebuttal – by Monica Velez
After the afternoon recess, Raven had the chance to leave the jury with some final words before they entered deliberation.
Raven began by saying what was important is not what Y.X. said, but how she said it. He played part of an audio recording of Y.X. being interviewed. The recording was emotional, with listeners hearing Y.X. sobbing through her recollection of what happened the night of July 9, 2012.
She said in the recording that when she woke up from passing out, she realized someone was on top of her, having sex with her, without her saying it was okay. She tried to scream but nothing would come out, she tried to move her hands but they were above her head, being held down by Her. She tried to kick, but she was motionless.
“Does that sound like someone who made that up?” asked Raven at the end of the recording.
Raven then went into explaining that Her got kicked out of UC Davis not for the reason he said in previous testimony. Her had said he got kicked out because of the sexual accusations against him, but in reality Raven said it was because he violated the restraining order against him when he tried to contact Y.X. to see if she would change her mind and drop the charges.
Raven stressed that Y.X. could have dropped the charges at any moment, explaining to the jury that this is how most rape cases turn out, because of the long painful process rape victims have to endure during a trial.
Raven said that Carlos was trying to discredit the witnesses who talked about reactions after rapes because he disagreed with them.
Raven explained that Y.X. had been through a “stranger rape” because she did not know who was allegedly raping her – until after it happened and she saw Her’s face. This testimony came from the defense attorney’s witness who talked about rape reactions. The witness had said that during “stranger rapes” the victim freezes up, and the same thing that happened to Y.X. when she described that she tried to move but could not.
“You have a lot of direct evidence in this case,” said Raven.
He told the jury to consider with caution the written statements, like police reports. Raven said that this case is based on direct evidence, the testimony of Y.X., and Her’s DNA that showed up on Y.X.’s panty liner and in the swab tests on Y.X.’s vagina.
Raven emphasized his next question to the jury, especially since Her said he did not know Y.X. was on her period at the time of the alleged rape.
“If a woman wasn’t asleep or drunk, why would she consensually have sex with a tampon in? What woman would do this?” Raven asked the jury.
Lastly, Raven went into the seven different stories that Her told throughout the course of three years. He never came out and said that he and Y.X. had sexual contact until after he found out about his DNA being in Y.X.’s vagina and on the panty liner. Raven said Her changed his story because he got caught.
Raven told the jury to question everything that had been said in the course of this trial because they have to prove, beyond a reasonable doubt, that Her is guilty. He told the jury to double-check everything and to find the facts and the truth.
After hearing the jury instructions from Judge Paul K. Richardson, eight men and four women walked out of the courtroom and into a deliberation room.