The Clinton Herald, Clinton, Iowa

Local News

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
Local News
  • Airport Photo 1 Construction pushed back

    CLINTON — Weather-related setbacks have pushed completion of the Clinton Municipal Airport renovation to late August at the earliest. Construction originally was slated to be completed in March, airport manager Mike Nass said.“It’s been a wet spring

    July 23, 2014 2 Photos

  • Mayor walks out on closed sessions CLINTON — Citing recent legal woes endured by the Clinton City Council, Mayor Mark Vulich stepped away from two separate closed session discussions on Tuesday’s agenda.“Because of previous legal matters, I will not be participating,” Vulich said. The

    July 23, 2014

  • Fulton Chamber's future funding source still unclear FULTON, Ill. — Questions still linger around the future of the Fulton Chamber of Commerce despite a three-year funding allocation and a partnership with the city of Fulton.During a City Council meeting Monday, the council voted to approve a recommend

    July 23, 2014

  • At the pool Summer heat may be temporary (wtih VIDEO)

    CLINTON — Just two days past the mid-point of summer, Clinton recorded its first 90 degree day of the season.Though it's not a very common summer trend in the Clinton area, there have actually been several July months over the years that never even r

    July 23, 2014 1 Photo

  • Shooting investigation continues CLINTON — An investigation continues in the weekend shooting of a 22-year-old woman.Clinton Police Capt. Bill Greenwalt confirmed Monday that police are not considering the shooting to be accidental. He said that Ciara Donley, 22, was walking between

    July 23, 2014

  • Police search for suspects in boat thefts CLINTON — Clinton police are asking for the public’s help in identifying the person or the people who stole two boats and damaged another boat approximately a week ago in the Clinton Marina area.Clinton Police Capt. Bill Greenwalt confirmed that two

    July 23, 2014

  • County to assist with road project CLINTON — Clinton County will apply for federal funds to assist the city of Low Moor with a road project.County Engineer Todd Kinney said Monday during the Board of Supervisors meeting that a road rehabilitation is needed on the first quarter mile or

    July 23, 2014

  • Northeast 1 Work continues on STEM wing (with VIDEOS)

    GOOSE LAKE — Rising out of the school grounds, the construction of a new athletic center and science wing continues at Northeast Middle/High School in Goose Lake.School administration and the board of education toured the construction site Thursday n

    July 22, 2014 2 Photos

  • Second arbitration filing

    AFSCME union is the second this summer to file for arbitration against Clinton.

    July 21, 2014

  • Fire causes Vitale's closure

    Vitale's restaurant closed this afternoon, according to the business's Facebook page, citing a small fire for the cause of the closing.

    July 21, 2014

Facebook
Clinton
Camanche

Fulton
Clinton Herald photos


Browse, buy and submit pictures with our photo site.