The Clinton Herald, Clinton, Iowa

Clinton

December 4, 2012

Judge rules Clinton man was ‘wrongfully imprisoned’

CLINTON — A Clinton County judge has found that a Clinton man who spent seven years in prison on a sexual abuse conviction was wrongfully imprisoned.

In a Nov. 21 witten decision, Judge Marlita Greve stated that 53-year-old David DeSimone established clear and convincing evidence that he was a “wrongfully imprisoned person” under Iowa Code 663A.1 and that he is factually innocent of the sexual abuse charge that led to his imprisonment.

The alleged sexual assault of a 17-year-old female occurred on the night of Oct. 16, 2004. DeSimone was found guilty of sexual abuse in the third degree on Sept. 15, 2005, and was sentenced to 15 years in prison on Oct. 19, 2005.

A Supreme Court decision vacated the decision in September 2011 and granted him a new trial. After a four-day trial in March, DeSimone was found not guilty by a jury.

“The court finds there is no serious or substantial doubt about the conclusion to be drawn from the evidence before it. David (DeSimone) did not rape... (the alleged victim.) David did not commit any sexual abuse or any assault on... (the alleged victim),” Greve wrote in her judgment.

After finding DeSimone factually innocent of the charge, Greve continued to find that no sexual assault or lesser-included crime was committed against the alleged victim by anyone on Oct. 16 or Oct 17, 2004.

“There is absolutely no evidence of any kind that substantiates... (the alleged victim) was sexually assaulted,” she wrote.

In order for a person to be found to be “wrongfully imprisoned” under Iowa Code, he or she must have been charged with the commission of an aggravated misdemeanor or felony, have not pleaded guilty to it or any lesser-included offense, and be convicted by the court or a jury.

The conviction has to have been vacated or dismissed or was reversed and no further proceedings can be held against him on any facts and circumstances alleged in the proceedings which resulted in the conviction.

The imprisonment also has to be based solely on the conviction that was vacated, dismissed or reversed. DeSimone’s case fits these requirements.

The other main requirement for the classification of “wrongful imprisoned” is factual innocence. DeSimone had to prove that he was factually innocent of the crime for which he was convicted. During a Nov. 13 bench trial, DeSimone and his attorney, Michael McCarthy, presented his case. DeSimone served as the lone witness, presenting his side of what occurred on Oct. 16 and Oct. 17, 2004.

Assistant Attorney General William Hill did not call any witnesses, instead planning to submit the transcript of both trials. McCarthy objected to this, claiming it would be hearsay. After deliberating on the issue for days, Greve sustained the hearsay objection and ruled not to accept the transcripts.

In her judgment, Greve considered DeSimone’s testimony and his demeanor. She wrote that he was calm and direct and did not avoid answering any questions. She did not feel that he appeared untruthful at any time, according to her judgement.

“David emphatically and credibly denied having any sexual relations with... (the alleged victim) of any kind, forceful or consensual,” Greve wrote.

The rest of her judgement was based on the fact that the alleged victim was very intoxicated on the night in question. Greve made mention of the fact that when the alleged victim initially called the 911 dispatch operator, she did not mention being raped. Greve also based her decision on the lack of physical evidence linking DeSimone to any sexual assault. She indicated in her judgement that there was also not enough physical evidence to prove that the alleged victim was assaulted.

With Greve’s ruling, DeSimone has the legal right to commence civil action against the state.

According to Iowa Code, he could receive an amount of liquidated damages equal to $50 for each day of wrongful imprisonment and lost wages, salary or earned income that directly resulted from the incarceration, up to $25,000 a year. He could also be eligible to receive attorney fees from this claim, as well as any fine, surcharge penalty or court costs and any reasonable attorney fees and expenses connected with the criminal proceedings.

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