The Arkansas Court of Appeals on Wednesday threw out a Faulkner County man’s rape conviction because prosecutors failed to subpoena any witnesses before the start of his trial.
The court found Circuit Judge Charles Clawson Jr. erred by granting the state’s motion for a continuance on March 13, 2012 - the day the trial was set to begin - and that “the diligence of the state in requesting a continuance is absent.”
Chief Judge Robert Gladwin wrote for a unanimous panel that there was no evidence that the state issued a subpoena for any witnesses until after the continuance was granted and that the state had failed to file an affidavit stating what facts the witness would prove.
“Because the continuance was erroneously granted,the state had time to secure the only witness who could provide evidence sufficient to convict appellant, and, that had the continuance not been granted, the charge likely would have otherwise been dropped,” Gladwin wrote.
Cody Hiland, the prosecutor for Faulkner County, said he felt that his office followed its protocols in the case because the victim had originally said she would testify and travel arrangements were in the works. He said he didn’t think he would do anything differently in the future based on the case.
“We’re talking about a witness that we thought was going to be available to us and had been cooperative with us the entire time,” Hiland said.
Hiland said prosecutors found out the victim was in Puerto Rico a few days before the trial and offered to fly her to Conway, but that they ultimately requested a continuance when she said she didn’t want to make the trip.
“Victims in sex-assault cases oftentimes get cold feet because they’re having to face the person who violated them. It’s important not to slam the victim. … [Testifying is] a tough thing to do,” Hiland said.
Hiland said he was reviewing the court’s opinion and will speak with the attorney general’s office about asking the Supreme Court to review the case.
Prosecutors charged Russell Hudson with one count of rape in a felony information filed in September 2010. In the filing, prosecutors claimed that Hudson engaged in “sexual intercourse or deviate sexual activity with another person who is less than 14 years of age” sometime between January 2000 and January 2002.
Hiland said the victim was 19 when she reported the purported assault to police.
Ted Thomas, chief deputy prosecuting attorney, wrote in the state’s March 13, 2012, motion for continuance that the state “needs additional time to prepare for trial and a witness was unexpectedly unavailable.”
The court continued the case over the objections of Hudson’s attorney, and the trial was rescheduled and held on Dec. 4, 2012. Hudson was found guilty and sentenced to20 years in prison.
Hudson, 49, of Mount Vernon is being held at the Arkansas Department of Correction’s North Central Unit in Calico Rock.
Hudson’s attorney, Charles Hancock, appealed the ruling, arguing that the continuance was granted in error and that the charge should have been dismissed because Hudson’s right to a speedy trial had been violated. Hancock did not return two phone messages seeking comment Wednesday.
Gladwin wrote that Rule 27 of the Arkansas Rules of Criminal Procedure states that a circuit court “shall grant a continuance only upon a showing of good cause.” The court should consider the party’s diligence, the probable effect of the testimony, the likelihood of the witness showing up if the trial is postponed and the filing of an affidavit showing what facts would be proved by the testimony.
The state did not meet those requirements and a continuance should not have been granted, Gladwin wrote.
Jen Carlson, a consultant trainer for law enforcement and prosecutors who works with the Arkansas Coalition Against Sexual Assault in Fayetteville, said in a statement that rape is already an under reported crime because “oftentimes trust in the legal process is lost in cases of sexual violence.”
Carlson said she could not comment specifically on the case, but said that rape cases that get overturned have a significant effect on the victims.
“It’s important for past and future victims of sexual violence that we continue to encourage and demand [that] prosecutors and law enforcement hold defendants accountable so victims feel secure in coming forward,” she said.
Arkansas, Pages 9 on 05/01/2014