The National Registry of Exonerations has recorded 1855 exonerations to date. Roughly 15 percent of them involved false sexual assault cases. DNA exonerations in the sexual assault cases reveal a much higher percentage of wrongful convictions.


Rape is a difficult crime to both prosecute and defend, especially those involving only “she said/he said” evidence. A July 15, 2016 decision by the Second Circuit Court of Appeals illustrates this point.


Issue of Consent


Jose Alex Fuentes was convicted of first degree rape and sodomy of a victim identified as G.C. There is no question that on the night of January 27, 2002 the two individual had vaginal and oral sexual contact. The question was whether that sexual encounter was consensual.


The morning after the encounter, 22-year-old G.C. showed up at the Woodhull Hospital in New York where she informed hospital staff that she had been raped. A rape kit was performed. A physical examination was also conducted. There was no physical evidence of injury (bruising, scratches, etc.) to support the rape allegation. Hospital personnel informed the police about the allegation.


Night at Manhattan Arcade Leads to Rape Allegation


G.C. told the authorities that she and four friends went to an arcade in Manhattan in Times Square. The group, according to G.C., left the arcade and took a subway home to Brooklyn. G.C. left the group at the Flushing Avenue station near the Marcy Projects where she lived with her mother and three sisters.


G.C. told a jury that as she walked home from the subway station, she noticed that a man was following her and that he followed her into the building in which she lived. Following a sequence of events, G.C. said the man put a knife to her throat and told her, “don’t do nothing stupid or I’ll cut you.” The man then took her to the roof of the building where he forced vaginal and oral intercourse. G.C. did not see a condom used.


Afterwards, G.C. said the man had her accompany him to the subway station so he could take a train to Queens. He told her his name was “Alex” and that she could be his “girlfriend.”


DNA Matched to Defendant


Two years later, January 2004, DNA evidence collected from the rape kit was matched to Fuentes. His version of the events about the night of January 27, 2002 was markedly different than G.C.’s version.


Fuentes said he and a group of friends were also at the arcade on the night of January 27; that he met and engaged in mutual friendly conservation with G.C. The two agreed that they wanted to have sex, and opted to go to G.C.’s building for the encounter. Fuentes said that after the sexual encounter, G.C. began to react erratically when he indicated to her that their relationship should be left as a “one-night stand.”


The prosecution called police, medical experts, G.C., and one of her friends at the trial of Fuentes.


One detective testified that he spoke with G.C. in 2004 after the DNA match and that G.C.’s version of the sexual encounter differed from the one she had told officers in 2002.


The friend’s testimony essentially supported G.C.’s version of the events on the night of January 27th.


Defendant Testifies Encounter was Consensual


Fuentes testified at trial in his own defense. That defense was that the sexual encounter was consensual and that G.C.’s behavior became bizarre after he told her that he did not want a continuing relationship with her.


As the prosecutor was presenting his closing arguments to the jury, Fuentes’ defense counsel was looking through some of the exhibits the prosecution had entered into evidence. He noticed a reference in the medical evidence exhibits about a psychiatric report pertaining to G.C. The report had been labeled “Record of Consultation.”


This report dealt with a “psychiatric consultation” G.C. had at the Woodhull Hospital when she reported the rape. The reported indicated that G.C. was having “family problems” and that she as though she was being “mistreated” by her mother. She expressed anger at going home late and putting herself at risk for the sexual assault. She reported that she had been having frequent crying spells before the alleged assault; that she had been withdrawn; and that she lacked any energy. She admitted to drug use, depression and hallucinations. The report recommended further psychiatric evaluation.


Prosecutor Intentional Withheld Report, Court Refuses Request for Mistrial


The prosecution did not disclose this report to the defense.  Upon discovery of the undisclosed report, the prosecutor admitted she intentionally withheld the report from the defense, but stated she did so out of concern for the psychiatrist-patient privilege.  The trial court admonished the prosecutor for failing to disclose the report, but did not grant the defendant’s motion for mistrial.


Brady Violation


The Second Circuit sidestepped the issue of whether defense counsel was ineffective by not discovering the psychiatric report earlier but chose to reverse Fuentes’ conviction on Brady grounds because the prosecution had not disclosed the report.


Prosecutor Admits Report was Material, Argues Harmless Error


The prosecution argued that while the report was Brady material, the error of failing to disclose was harmless in light of the other evidence presented at trial of Fuentes’ guilt.


The Second Circuit soundly rejected the harmless error reasoning. The court pointed out that G.C. “provided the only evidence that what occurred was a crime” and that the “withheld document was the only evidence by which the defense could have impeached [G.C.’s] credibility as to her mental state.”


We suspect the prosecution knew that the psychiatric report would have devastated the “she said” testimony of G.C., and thus, made a deliberate decision not to disclose it.


Prosecutor Tipped Scales


And therein lies the real problem in this particular rape case (and one that it frequently seen in other sexual assault cases): the prosecution made a determination of guilt and elected to manipulate the evidence to support that determination.


No one will ever truly know what kind of sexual encounter Fuentes and G.C. had on the roof that night. That will remain an unsolved mystery.


What is clear in this case is that the defendant had a right to know what G.C. said during her psychiatric evaluation following the rape allegation.


The jury, in particular, had a right to know about her admitted erratic behavior (depression, being withdrawn, family problems, drug abuse, etc.) because it went to the heart of the credibility of her rape accusation.


Unethical Acts of Prosecutors Pervert Justice


The prosecution unethically elected not to let the jury have this vital information, resulting in an unconstitutional conviction of Fuentes. We doubt very seriously if the prosecution will retry this case. They cheated to get the first conviction. With an aggressive defense lawyer, the psychiatric report will make the likelihood of a second conviction miniscule.