The Clinton Herald, Clinton, Iowa

Clinton

November 14, 2012

Wrongful imprisonment case hinges on transcripts

CLINTON — Judge Marlita Greve will decide whether trial transcripts will be allowed in a case filed by a Clinton man claiming to have been wrongfully imprisoned.

David DeSimone, 53, and his attorney Michael McCarthy, presented their case to Greve on Tuesday. 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 DeSimone a new trial. After a four-day trial in March, DeSimone was found not guilty by a jury.

McCarthy and Assistant Attorney General William Hill explained to Greve that the burden of evidence is on DeSimone and McCarthy. They have to prove to her satisfaction by “clear and convincing evidence” that he is innocent.

DeSimone testified about the night of Oct. 16, 2004, when the alleged assault took place.

A party for his cousin, who had just had a birthday and graduated early, was held at his place and approximately 60 to 70 people  attended the night “off and on.”

McCarthy established with DeSimone that he had never met the alleged victim previously and discussed their interactions. He told the court about a fight that broke out after he took the 17-year-old girl downstairs to a bathroom. Several people at the party raced downstairs and asked him what he was doing with her. The party broke up shortly after the incident.

McCarthy had DeSimone continue to explain what happened the next day when police arrived with a search warrant. He said that his mind was not operating well because he had a hangover. Eight months later, DeSimone was charged.

“So you’re telling this court under oath that you did not have sex with (the alleged victim),” McCarthy said.

DeSimone answered that he did not have sex with her or rape her.

DeSimone’s testimony was the only evidence McCarthy submitted for the case. He told the court that with the lack of corroborating evidence from the state, he felt DeSimone’s testimony was enough.

During cross-examination, Hill had DeSimone confirm that his testimony was consistent with his testimony during the March trial. Hill did not issue any evidence from the state, instead asking that Greve consult with the transcripts from both trials.

“I’m not here to retrial the case. There have already been two trials,” Hill said.

McCarthy objected to the use of the trial transcripts, saying it is hearsay. He added the state would need to show that witnesses are not able to come to court, especially his client’s accuser.

“We know she testified in March. We know she testified in 2005,” McCarthy said. He added that she should be able to testify during these proceedings as well.

Hill, however, told the court that he does not see the need to put the alleged victim in the position of having to testify again.  He did not want to put her through that trauma again.

“We know what the victim has said in this case. We know what the record is,” Hill said.

Greve will consider both attorneys’ arguments and will make a determination on the use of the transcript within a few days. Hill will order a transcript of the March trial. Greve said if she rules in favor of using the transcripts, it could be months before a decision on the case is made. If she decides against using the transcript, it could take a couple of weeks.

If DeSimone is determined to have been wrongfully imprisoned, he could be eligible to receive damages. According to Iowa Code, this includes an amount of liquidated damages equal to $50 for each day of wrongful imprisonment and lost wages, salary or earned income directly resulted from the incarceration, up to $25,000 a year. 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 are eligible.

1
Text Only
Clinton
  • photo-55.JPG UPDATE: 17-year-old fell, airlifted at Eagle Point Park (with VIDEO)

    A 17-year-old male was airlifted to Iowa City Monday afternoon after he fell approximately 80 feet from the bluff at Eagle Point Park. The male was not identified by authorities.

    July 28, 2014 1 Photo

  • Interest in Ernst rises as his game does, too

    Brady Ernst is having a summer to remember.
    The rising River King senior is spending the summer playing for the Iowa Barnstormers traveling basketball team. This weekend they're playing in the Fab48 tournament in Las Vegas.

    July 26, 2014

  • PHOTOS: Clinton Junior Baseball 2014 Tournament Winners

    Clinton Junior Baseball 2014 Tournament Winners - Majors, Minors, Pee Wee

    July 25, 2014

  • JUST IN: Man shot in downtown Clinton

    A 32-year-old man was shot in downtown Clinton early today.

    July 25, 2014

  • YWCA offers lifeguard training

    CLINTON — The YWCA will offer lifeguard training in August.The course will be held from Aug. 4 to 10 at the YWCA. This 30-hour class will meet from 5 to 9 p.m. for four weeknights and from 1 to 5 p.m. Saturday. A possibility of adding a class from 1

    July 25, 2014

  • Concurrent terms ordered in burglary case

    CLINTON — A Clinton man will serve four concurrent prison terms for his role in a string of 2012 burglaries.Assistant Clinton County Attorney Amanda Myers on Thursday requested the court to order Cory Mitchell, 38, to serve as much as 10 years in pri

    July 25, 2014

  • Whitecaps take away Clinton offense CLINTON — The Clinton LumberKings (13-19, 43-57) mustered only five hits as the visiting West Michigan Whitecaps (20-12, 61-41) shut down the hometown club at Ashford University Field.Whitecaps’ starter Jonathon Crawford (6-2) allowed only four men t

    July 25, 2014

  • 7-25-14 1B-Photo, Clinton track Clinton king of Brady DAVENPORT — It might not have been the blue oval, but Clinton track can place its mark at the top of the hill.The quartet of Barrion Collins, Marquis Robinson, Quavon Jones and Deshond Robinson won the high school boys division of the Battle Up Brady

    July 25, 2014 1 Photo

  • Habitat for Humanity hosts fundraiser

    CLINTON — Habitat for Humanity will host a fundraiser in Thomson, Illinois.The Clinton County group will showcase Laid Back Luau from 5 to 8 p.m. Friday, Aug. 8, at Heirloom Cafe in Thomson. The event will feature games, prizes, music train rides for

    July 25, 2014

  • 7-24-14 1B-Photo, Choice 2 Cinderella run ends DUBUQUE — The playoff run was fun while it lasted. Dubuque Hempstead, the No. 1-ranked baseball team in Class 4A entering Wednesday, ended Clinton’s chances at back-to-back appearances in the state tournament in Des Moines. The Mustangs knocked out t

    July 24, 2014 2 Photos

Clinton Herald Photos


Browse, buy and submit pictures with our photo site.

Facebook