More Inconsistent Testimony

In my last blog post I wrote about one issue of inconsistent testimony raised during the Motion to Set Aside The Verdicts. Today’s post focuses on another inconsistency. The conversation between Drew’s defense attorney and the judge relates to trial testimony given by the woman, verses what she reported to the police. Also, the friend of the woman was called as a witness for the Commonwealth, but his testimony contradicted the woman’s testimony. I will shorten the verbiage as much as possible while still providing relevant transcript exchanges, and information.

Hearing transcript pages 118-123, Court: judge speaking, Attorney: Drew’s defense attorney speaking. The Presentence Report referenced includes the full police report not given to us before trial. For the sake of privacy I use (friend) instead of the friend’s actual name. I use (woman) instead of the woman’s name.

The Court: I was looking at the alleged inconsistencies there. I guess I’ll start with the end of the letter, your comment whether she allowed herself to be alone with Mr. Harrison.

Much discussion goes on between the judge and attorney regarding what specifically the attorney is asking the court to consider. The woman had told the police that she had communicated with Drew after the evening in her apartment, but had never allowed herself to be alone with him. Drew’s attorney is pointing out to the judge that this differs from her trial testimony. As you read this back and forth discussion imagine Drew and us trying to make sense of the judge arguing with facts.

The Court: I was looking at the first incident of the transcript. This is direct of (woman) referencing the Barnes & Noble. The question on direct was – -Did you take any steps prior to meeting to be protective of yourself? Her answer was, I didn’t drive my car. I had (friend) with me. He escorted me. Stayed a few places over from where I was and waited it out and drove me home. Taken as a whole, she wasn’t alone with him on that instance because she brought (friend) with her who stayed a few places – – I don’t know what places mean, but she wasn’t truly alone on that incidence because she had (friend).

Attorney: Let me see if I can address that. I think ultimately she agrees that he left. This is (friends) testimony:

What was your understanding of why you were going with her to Barnes & Noble? She told me that it was part of her therapy. She didn’t want me to be around when she was talking to him. She wanted it to be just her, so I went somewhere else. I came back to pick her up close to when they were finished with their conversation.

The question was, you said when you were there she just wanted to talk to him alone and not me around to overhear something or worry about. So you were not part of that conversation? No, I was not. Approximately how long were you at the Barnes & Noble store? Since I came later, I waited maybe ten minutes.

I think she had testified she was there 40 minutes. He contradicted her at the trial.

The Court: But she didn’t contradict herself, did she?

Attorney: No, but she was not truthful with the court according to her own corroborating witness. She says he came and he was a couple places down and he says, No, she didn’t want me to be there, so I left. He comes back 30 minutes later and he is there for 10 minutes maybe total. She’s alone with the defendant throughout that time. That is absolutely – – that’s not my witness. That’s the Commonwealth’s witness that contradicts her. You have her contradicted within the Commonwealth’s own evidence there. I think later in her testimony she talks about when they went to another store, she didn’t remember whether it was Barnes & Noble, but she agreed that she had bought him that  – – recommended to him, I’m sorry, that erotic book.

Attorney: She doesn’t have anybody with her on this occasion. She doesn’t even attribute (friend) or somebody else being with her. This is a second occasion where she goes by herself and meets with him. So we have two indications in the transcript of the trial that she, one – – you’re right. She didn’t contradict herself with what she said to the police, but she’s contradicted by the person she says took her there and stayed with her so she didn’t have to be alone. When he gets on the stand he says she wanted to be alone with him and she sent me away. I left and I came back and I was there ten minutes. I think she testified 30 to 40 minutes that they met at Barnes & Noble at that occasion. She says she meets him on a second occasion and recommends The Claiming of Sleeping Beauty which is an erotic book. Yet she told the police apparently originally that she’s spoken with him since the assault, but she has never allowed herself to be alone with him. She wasn’t truthful with either the police or she wasn’t truthful with this court. If this is really an assault, why do you meet with somebody in the first place? And why in the world if you think he needs help and needs treatment would you recommend to him an erotic book that you think is a good book for him to have. That seems to me to be absolutely contrary to what a person that is truly an assault victim would recommend.

The Court: I was just trying to compare testimonies. I think you and I will disagree.

Attorney: Judge, how can we disagree. On the testimonies that are there, she says what she says and (friend) says what he says. They disagree, but how can you and I disagree they say something different?

The Court: Actually, that’s what I was going to say. On a granular level, whether (friend) picked her up ten minutes later or whether she said he escorted me, stayed a few places over from where I was. As I said, I don’t know if that means parking places. I don’t know what it means. It’s not diametrically testimony.

Attorney: Well, the second one certainly is. The second time she’s all by herself and she goes to Barnes & Noble and makes this recommendation. That’s certainly diametrically opposed to what she told the policemen. The policeman’s statement wasn’t under oath, but – –

The Court: I don’t think she was ever asked if she was alone. I guess you can say that was an indication, but it doesn’t say.

This went back and forth as the courtroom was in total silence. It felt like an out of body experience. I ended up fainting.

The judge had based his conviction on the relative credibility of Drew and the woman. He didn’t view her as attempting to deceive the court. The attorney is now presenting facts that she either wasn’t telling the truth to the court, the police, or if we are to be more polite she gave inconsistent testimony. No matter how you label it, her testimony was not more credible than Drew’s. My last post, Spotlight on the Truth shows her inconsistent testimony. Now we have another contradiction. Both were presented during the same hearing.

Drew’s attorney wasn’t using legal loopholes or technicalities. He was stating facts and pointing out the blatant inconsistencies of the person the judge deemed to be  the “more credible” witness.

The judge on the other hand seemed to be intent upon pounding a square peg until it fit into a round hole, justifying his conviction.