Defense: DA Allison Palmer Improperly Bolstered Child Witness to Get Conviction of Justin Riordan
SAN ANGELO, TX — Justin Riordan, who was convicted in February for sexual assault of a child, filed an appeal with the Court of Appeals for the Third Judicial District last week. Attorney Frank Sellers of Lubbock, who is representing Riordan, argued in the 102-page brief for an oral hearing before the appeals court to examine new evidence that was unearthed after Riordan’s conviction that may exonerate him.
In addition, Sellers argued that 51st District Attorney Allison Palmer should have been prevented from vouching for her own witness’s credibility and sharing with the jury her own personal opinions of Riodan’s guilt to the jury during the trial’s final argument on Feb. 19.
Riordan, then 29 years old, was convicted in a trial that appeared to be headed towards acquittal or a hung jury according to published reports. The jury deliberated for five hours before reaching the guilty verdict. He was sentenced to 10 years in the Texas Department of Criminal Justice.
Riordan was convicted for having sexual intercourse in the early morning hours with a 13-year-old girl at a house party in Miles in 2014. The testimony of the girl, who by the time of the trial was 15 and considered a child witness, would become the principle evidence in the trial.
From prior reporting and transcripts of the trial, it was apparent that Palmer was faced with a child witness who had a tough time on the stand. Her testimony was inconsistent with her past recorded statements.
“The defense counsels, Shawntell L. McKillop and Jessica Skinner, and 51st DA Allison Palmer recessed a few times to remind the victim of her recorded statements, which she continued to change and deny. When the defense would catch her in these discrepancies, the victim would break down and cry inconsolably to the point she was finally released from the stand,” LIVE! reported Feb. 20, the day after the trial.
At the recess of the trial at the end of the day on Feb. 17, the court reporter wrote, “7:30 (p.m) issue as to CW’s (child witness’) memory of prior statements sent jury home for the night; court will start at 9 (a.m.). In addition, the court reporter wrote, “Att[orneys] are instructed to have the CW (child witness) to review her prior statements.”
Palmer attempted to compensate for the child witness’s inconsistent performance on the stand by arguing that she (Palmer) personally believed the witness.
In Riordan’s appeal, Sellers argued this was improper.
“Prosecutors are prohibited from vouching for the credibility of witnesses or offering personal opinions of guilt during final argument,” the brief states. “Here, the prosecutor made her opinion that the complainant was telling the truth, a main theme of her [final] argument. She told the jury she personally believed the Appellant was guilty.”
By compensating for the perception of little credibility of the child witness, Palmer “injected plain, structural error into her final argument by sharing her personal opinion of K.S.’s (child’s) credibility and Appellant’s (Riordan’s) guilt,” the brief notes.
The brief quotes a portion of Palmer’s closing argument to support this claim.
Palmer stated in her closing argument, “And although I believed her testimony, you may feel that you believed her testimony, you, too, can be emboldened by the truth of it . . . “
In the brief, Sellers argues, “Even though defense counsel did not object, these arguments were a plain error that affected Appellant’s [Riordan’s] substantial rights and seriously affected the fairness, integrity, and public reputation of his judicial proceedings. Therefore, reversal is required.”
Last week, Sellers explained that, as a representative of the State of Texas, DA Palmer “may not cloak a witness in the protective mantle of the state.” Doing so imparts the credibility of the state onto the witness, or as Sellers notes in the brief, “the power and force of government tend to impart an implicit stamp of believability to what the prosecutor says.”
That is not all the DA did to compensate for the inconsistent performance by the child witness, Sellers argued.
The prosecution used an “unreliable, irrelevant expert [witness] to ‘fix’ problems in its case, which amounted to commenting on [the child witness’s] credibility,” the brief states.
“The reason we have juries is so your peers can assess the credibility of the complaining witness,” Sellers said in an interview last week. Palmer’s commentary and the use of an expert witness to fix a bad witness should not have been allowed during the trial, he said.
In addition to issues with the actions of the prosecutor, Sellers argued that Judge Barbara Walther should have given the jury instructions to cure the prosecutor’s improper bolstering of the child witness before deliberations.
Sellers uses much of the brief to argue Riordan was also denied justice when the district court refused a new trial after evidence favorable to Riordan was discovered after the conviction.
That evidence: a girlfriend of the child witness alleged the child witness told her she lied about Riordan raping her.
K.S. is the child witness and T.S. is her teenaged girlfriend. T.S. read about Riordan’s conviction on San Angelo LIVE!, and recalled earlier conversations with K.S. where K.S. told her she lied about a man raping her and now he is going to jail.
“She said, ‘I told them that a guy named Justin raped me,’” T.S. stated in a sworn affidavit to the court submitted after Riordan’s conviction.
The evidence of the new witness was presented to Judge Walther’s court Apr. 20. The judge refused to grant a new trial and did not state why a new trial was not granted, Sellers said.
Sellers argued that a court must apply a four-pronged test to determine if a new trial is necessary:
- The newly discovered evidence was unknown or unavailable to the defendant at the time of trial;
- The defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
- The new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and
- The new evidence is probably true and will probably bring about a different result in a new trial.
The fourth point, that the evidence is probably true, was a point of contention at the hearing for a new trial, according to the brief.
Sellers argued that T.S.’s testimony is probably true because, after news that T.S. had come forward reached K.S., K.S. confronted T.S. at school.
“By confronting her, K.S. only confirmed that what she told T.S. was probably true,” Sellers argues in the brief.
At the Apr. 20 hearing for a new trial, Sellers argued that the state did not offer any evidence to controvert T.S. testimony. However, the state did offer a controverting affidavit that the court did not allow into the record.
The affidavit was curious, Sellers argued, because the DA had the ability to subpoena K.S. back to court for the Apr. 20 hearing.
“[I]t raises suspicion that K.S.’s testimony would have been unfavorable,” Sellers states in the brief.
Judge Walther ruled against a new trial for Riordan about two weeks after the hearing with one word, “Overruled.” Sellers said the judge is not required by law to explain her decision by issuing written findings or conclusions explaining why.
Currently, DA Allison Palmer has not filed her response with the court.
Sellers said in an interview last week that he truly does not believe Riordan received a fair trial.
“None of us want child molesters to roam the streets,” he said. “But, at times, we need to step back and look at cases like Riordan’s. Are we putting people in prison who are innocent by employing procedures where innocent people are thrown into prison along with the truly guilty?” he asked. “In this case it appears that we are.”
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