By Sarah Abfalter
Defense attorney Christopher Carlos motioned for a mistrial, but was denied Wednesday morning in the case of Lang Her, 26, a former UC Davis student being tried for the second time for an alleged sexual assault that occurred back in July 2012. Her’s first trial resulted in a hung jury, voting 8-4 in favor of his acquittal.
According to Carlos, the prosecution team has committed several discovery violations, including a witness during testimony presenting new undiscovered documentation that had never been seen by the defense. But even more egregious, according to Carlos, was the mid-trial discovery of a previously unheard and unknown audio recording of the defendant, taken when the defendant had originally returned investigators’ calls regarding the alleged incident back in 2012.
Sergeant Ariel Pineda of the Davis Police Department, the officer who recently reported the existence of the audio recording to the prosecution team, was called to the stand outside the presence of the jury to explain the reasoning as to why this evidence was never previously presented, either during the last trial or at the beginning of the current one.
However, the only explanation Pineda could provide was that it was a lapse in memory and his own unintentional “error.” According to Pineda, when he received the subpoena to testify in the current trial, he reviewed his case file in preparation, at which time some portion of his notes jogged his memory that he had actually recorded a telephone conversation with Her during his initial investigation of the case.
But Carlos questioned Pineda on the fact that it seemed to be standard practice, both to note such important evidence in your investigation report as well as to book it into evidence. Again, the only explanation Pineda could provide was that he had thought he had booked it, and forgetting to do so was just his own “error.”
While Carlos’ motion for a mistrial was denied, ultimately Judge Richardson ruled that the defense could present evidence to the jury to show that the audio recording was mishandled by the police department and not presented to the defense during pre-trial discovery.
Once in the presence of the jury, the prosecution called several additional witnesses including victim advocate Jessica Heskin, who testified to the range of trauma responses that could be displayed by a sexual assault victim, specifically a victim of sexual assault committed by an acquaintance. Despite Carlos’ objection that Heskin was unqualified to be deemed an expert in this area, Judge Richardson deemed her an expert and allowed her to testify on behalf of the prosecution.
Heskin explained to the jury that one symptom that could be displayed by a victim during a sexual assault is “freezing in the face of fear,” which the accuser in this case, Y.X., claimed had happened during the allleged incident. In an audio recording of the alleged victim’s initial report to Officer Pineda, Y.X. described not having control of her arms and one of her legs, causing her to be unable to fight off the defendant.
Heskin further testified to several barriers that may have caused a delay in Y.X.’s reporting of the alleged incident to the police, including social pressures that she could have felt as a member of the college population, as well as certain cultural pressures she may have felt due to her traditional Hmong background.
During Heskin’s cross-examination by defense, Carlos attempted to invalidate many of Heskin’s findings, pointing out that many of her findings were one-sided and just favorable to the prosecution, and that she was completely unfamiliar with any statistics or information regarding the frequency of false reporting.
Several prosecutorial objections were sustained when Carlos began asking Heskin if she had any knowledge of borderline personality disorder, seeming to insinuate that Y.X. made a false report because she had this disorder, but no diagnosis has ever been made.
Judge Richardson admonished Carlos that he will need to step lightly regarding any discussion of this disorder when he calls his own expert witness in the coming days of the trial.
Detective Pineda’s Testimony Resumes
By Abigail Soler
Thursday morning began with Sergeant Ariel Pineda’s continued testimony for the Lang Her retrial. The morning’s testimony lasted about three hours. Following the conclusion of the detective’s testimony, the People called Davis Police Corporal Pheng Ly to the stand.
In direct examination, the deputy district attorney asked Pineda questions, which ultimately brought up the topic of the pretext phone call, conducted on July 26 of 2012 (three weeks after the alleged rape). The prosecution played the pretext phone call for the courtroom.
Sgt. Pineda, a detective in 2012, was present to supervise the pretext call between the alleged victim and the defendant. The content of the recording involved the alleged victim trying to elicit a confession from Mr. Her. The defendant’s tone was surprised, and he denied all the allegations. The pretext call lasted about ten minutes. The phone called ended with the defendant requesting to speak in person, with only a qualified admission of “according to you,” and that was because the alleged victim was demanding his admission.
After the recording was played, the People clarified events following the alleged incident – including the DNA swab and the meeting place of the detective and the defendant for the swab, and the detective’s plans for the swab.
Cross-examination began with much of defense attorney Christopher Carlos’ questions being used to highlight the shortcomings of then-Detective Pineda’s investigation.
The most notable instance Carlos elicited was the detective’s lack of communication and correspondence with the defendant. Pineda received the case two days after the alleged rape. Upon being assigned to the case, he conducted no interviews nor attempted any confrontation with the defendant. Pineda argued that his initial steps were spent verifying the information in the report.
Additionally, Carlos made note that the original cover page of the report – which was recorded by the court as Exhibits 7 and 8 – was different from the detective’s current case report.
During morning recess and outside the presence of the jury, Carlos stated: “I think this trial is fundamentally unfair to my client,” and requested a mistrial. The judge denied the motion.
Following recess, cross-examination continued to emphasize Pineda’s deficiencies in the investigation. The deputy district attorney was allowed rebuttal. Soon after, the witness was dismissed.
The next witness, Corporal Ly of the Davis Police Department, was called by the prosecution to testify.
In the opening minutes of direct examination, the deputy district attorney motioned to qualify Ly as a credible expert in the Hmong culture. Neither the court nor the defense had objections. The court granted the People’s motion.
In direct examination, Ly was asked questions about traditional Hmong culture and established Hmong neighborhoods in the surrounding area. Ly provided the jury with a brief overview of various ceremonies, gatherings and expectations of the culture.
The prosecution asked Cpl. Ly a series of hypothetical questions, with details similar to the trial at hand. These questions were later used by the defense, which caused tension between the cross-examiner and the witness.
The defense entered cross-examination asking Ly to imagine the same hypothetical situation, but to presume the allegation to be false.
Carlos continued to ask Ly questions regarding the Hmong culture. Carlos’ main questions about the Hmong culture were primarily in line with Ly’s testimony.
Both sides began questioning Ly about the terms and frequency of civil compromises within the Hmong culture.
Pheng Ly’s Testimony Resumes
By Monica Velez
The testimony of Corporal Pheng Ly, of the Davis Police Department, resumed on the afternoon of February 18, 2016. The deputy district attorney asked him more about the Hmong culture, specifically whether or not rape would be worse for somebody in the Hmong culture.
Corporal Ly said he thought, for someone in the Hmong culture, rape would be worse than if that person were in any other culture. He said that since sex before marriage was considered impure, the parents of that individual would be tasked with the burden and stigma of finding their daughter a good husband.
He said that the individual who was raped would probably have to lower the standards for a husband, maybe settling for somebody who isn’t as high of stature.
Defense attorney Christopher Carlos took the angle of asking Cpl. Ly about whether a 19-year-old girl who was excessively drinking would be considered a traditional Hmong, getting to the point that the alleged victim was not following traditional Hmong values.
When asked by the deputy district attorney, Ly said that he did not expect a woman in the Hmong culture to report a rape, because of the stigma that comes with the allegations and what the family would have to go through.
Carlos asked him about what would happen in the Hmong culture if somebody lied about being raped. Corporal Ly responded that the family would be looked at unfavorably and that their family name would never be the same again.
Deputy Sheriff Mark Saunders of Yolo County was the second witness of the afternoon. He met with the alleged victim after she told the police about the alleged rape.
At the time of the alleged rape, Dep. Saunders was working for the Davis Police Department, and met with the accuser in a parking lot outside of her apartment. The alleged victim was with her sister when she explained the night of the alleged incident.
Dep. Saunders testified that the accuser said that, before arriving at the defendant’s apartment on the night of the alleged rape, they had been out to local bars for drinks with some other friends. On February 11, 2016, when the complaining witness testified in court, she denied that these events took place.
Everything else Saunders described was consistent with the statements of the alleged victim saying that she did not know it was Her until after he had “penetrated her,” pulled up her pants and moved to another bed.
The deputy said that he told the alleged victim to bring him the clothes she wore that night, and she brought them to him in a plastic bag.
The third witness worked for the Sutter Medical Foundation, processing and receiving legal works. She brought with her a CD of an examination of the alleged victim that took place in 2012 at the B.E.A.R. (Bridging Evidence Assessment & Resources) Center.
None of the medical records were shown in court, and the third witness was asked questions about how she receives the requests from the district attorney or the public defender for medical records needed in court.
An expert witness in biological screening, Jonathon Sewell, was the last witness of the day. Sewell works for the California Department of Justice, being a criminalist in DNA and biological screening. He currently works at the forensic lab in Sacramento and did tests on the clothing the alleged victim wore the night of the alleged rape.
Sewell showed the court a PowerPoint that outlined the basics of what he does, showing the process of finding bodily fluids, such as saliva, semen or blood on objects, or on swabs coming straight from the body. He said his aim in biological screening was to locate or identify any biological fluids present.
Sewell tested the alleged victim’s underwear and footed pajamas that she wore after the alleged rape occurred. The accuser was on her period when the alleged rape occurred and had a panty liner on the underwear she was wearing. The panty liner was still on the underwear and Sewell tested the liner as well as the underwear and pajamas for semen and bodily fluids.
The only objects that tested positive for semen were two different areas on the panty liner.