The Clinton Herald, Clinton, Iowa

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November 23, 2012

DeSimone decision by end of month

CLINTON — Clinton County hopes to have a decision on David DeSimone’s claim as a wrongfully-imprisoned person by the end of the month.

Judge Marlita Greve determined that a transcript for DeSimone’s second trial will not be necessary in her opinion.

DeSimone, 53, 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.

DeSimone and his attorney, Michael McCarthy, presented his case on Nov. 13. The burden of proof is on them to show by “clear and convincing evidence” that he was not only found not guilty but also is  “factually innocent.” DeSimone’s testimony on the night of the alleged rape was the only evidence, McCarthy said.

Assistant Attorney General William Hill planned to submit the transcript of both trials. McCarthy objected to this, claiming it would be hearsay. Greve agreed to consider the issue and make a determination on the use of the transcript within a few days. She said at the time that if the second trial’s transcript was needed, it could have been months before a decision was made.

If DeSimone is determined to have been wrongfully imprisoned, he could be eligible 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, according to Iowa Code. 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 also eligible.

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