By Samantha Pidde
Herald Staff Writer
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.