The Clinton Herald, Clinton, Iowa

March 25, 2013

State appeals Desimone ruling

By Samantha Pidde
Herald Staff Writer

CLINTON — The state of Iowa is seeking to reverse the ruling of a district court judge who determined that David Desimone, 53, of Clinton, was “wrongfully imprisoned.”

Attorney General of Iowa Thomas J. Miller recently filed an appeal in the Iowa Supreme Court on a judgement made by Judge Marlita Greve on Nov. 21, 2013. The appeal addresses whether DeSimone had the authority to apply for a wrongful imprisonment designation, whether Greve should have refused to consider the  entire case file, whether the court incorrectly determined DeSimone was innocent as a matter of law and whether the court erred in determining he had proved his innocence by clear and convincing evidence.

DeSimone spent seven years in prison for the alleged sexual assault of a 17-year-old female, occurring on Oct. 16, 2004. He 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. The decision was vacated by the Iowa Supreme Court in September 2011 and he was granted a new trial. After a four-day trial in March 2012, DeSimone was found not guilty by a jury. He then put in his application for wrongful imprisonment.

Iowa Code allows someone determined to be “wrongfully imprisoned” to receive 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. Such a person would also be eligible for attorney fees, fines, surcharge penalties and court costs connected with the “wrongful imprisonment” claim and the criminal proceedings.

The appeal filed by the state argues that DeSimone should not be eligible for an application of wrongful imprisonment. According to the motion, the Iowa General Assembly created a cause of action for wrongful imprisonment in conjunction with several other cases, spurred by the exoneration of wrongfully imprisoned persons. The motion continues that unlike the other three cases connected with this legislation, DeSimone’s application was not triggered by the filing of a claim with the State Appeal Board or the district court petition. In this case, the application was triggered by vacation of the conviction by the Iowa Supreme Court.

The motion continues that DeSimone was given a new trial and found not guilty. His application was filed in response to this verdict and not to the Iowa Supreme Court’s decision, according to the state’s appeal. The motion adds that based upon case law, no one has brought a wrongful imprisonment claim following a not-guilty verdict.

“DeSimone’s remedy was the second jury verdict itself,” is stated in the appeal.

Following the previous hearing on which Greve based her decision, she decided not to allow the transcripts from the two trials as evidence from Assistant Attorney General William Hill. This decision was made after DeSimone’s attorney, Michael McCarthy, argued the use of the transcripts would be hearsay. According to the motion for appeal filed by the state, since DeSimone filed his application within his criminal case instead of in a separate tort action, the transcripts were already part of the case and part of the record. The motion argues that it was not the intent of the legislature to require the state to completely retry its criminal case.

The state also is arguing whether DeSimone is actually innocent as a matter of law. Under Iowa code, a person filing an application of wrongful imprisonment must prove that he or she is actually innocent, rather than just not guilty of a crime. The state’s motion claims that DeSimone cannot meet this heavy burden as a matter of law. The motion continues that at his first trial, the defense made a motion based on the argument that the case was lacking evidence or corroboration of the testimony of the complaining witness. The district court rejected the motion twice.

“The only evidence presented by DeSimone at the hearing on his wrongful imprisonment application, which was not presented at the first trial, was his own self-serving testimony. How can evidence not presented, but wholly available, be used years after the fact to cast aspersions on the legitimacy of the first conviction?” the state wrote in the motion.

The state’s appeal also argues that DeSimone did not prove his innocence by substantial evidence. The motion argues that no evidence was presented to establish that he did not commit sexual abuse or that no assault occurred.

“No evidence was presented that the victim recanted her prior testimony. No evidence was presented that any prosecution witness recanted his/her testimony,” the state argued. The motion continued that there was no DNA evidence excluding DeSimone, no physical evidence proving that no sexual assault occurred and no evidence creating an alibi for DeSimone.

With the submission of this appeal case, the state is asking to be heard at an oral argument.