Judge Calls Mistrial In Rape Case
By Daniel Gilbert
Reporter / Bristol Herald CourierPublished: June 20, 2009
BRISTOL, Va. – In the end, the case hinged on whom to believe.
Did jurors believe the 13-year-old girl who claimed Hewie Isaiah Tester raped her three times in 2006, when she was a fifth-grader? That she followed him into the bedroom and put up a minimal fuss even after the first incident? And that she didn’t report it to anyone for a full two years out of fear?
Or did they believe Tester, a 21-year-old with misdemeanor convictions, from passing bad checks to assaulting his father, who denied any inappropriate contact with the girl?
After five hours of deliberating over Thursday and Friday, the five men and seven women jurors couldn’t reach a consensus.
Making their decision difficult was a paucity of evidence corroborating the conflicting testimony. No one witnessed the alleged crime, no meaningful physical evidence could be recovered two years after the fact, and the young girl’s physical exam was normal, neither proving nor disproving sexual assault.
Circuit Court Judge Larry B. Kirksey declared a mistrial Friday, refusing for the third time during the trial to dismiss the charge against Tester, and effectively shunting the case into the hands of some future, yet-to-be-seated jury.
“We’re all very tired and sorry it didn’t get resolved for all the parties concerned,” said Robert Wick, Tester’s defense attorney. “Sometimes it happens that way.”
Bristol Commonwealth’s Attorney Jerry Wolfe declined to comment.
Tester was arrested in November 2008, and charged with rape of a child under 13 years of age. He was 18 in August 2006, when the girl said she was raped.
It is the prosecution’s burden to prove beyond a reasonable doubt that a defendant committed a crime, and Friday’s hung jury indicated that at least one juror doubted Tester’s guilt and at least one believed in it.
Even with nothing to corroborate the 13-year-old girl’s story, her testimony alone would be legally sufficient to support a conviction. In oral arguments Thursday, assistant prosecutor Loretto Doyle urged jurors to look beyond the one-source testimony, arguing that rape is typically a “crime of secrecy” with no eyewitnesses.
Asked Thursday why she kept silent for two years, the 13-year-old girl testified that she was afraid of angering family members and prompting accusations that she was lying. That had been the fallout from her accusation five years ago that her uncle had raped her; she recanted the accusation, she testified, when her stepfather told her to and offered to buy her a game system she wanted.
Both Doyle and Wick seized on that incident in arguing their case. Wick said it damaged the girl’s credibility because she had lied to court authorities before; Doyle said it made the girl an easy target for further victimization, and that her fear of creating another family fight might have influenced her decision to stay silent.
Wick pressed the girl to elaborate about her fear, but she did not.
“I was just afraid,” she said.
“For any particular reason?” Wick asked.
“No, I was just afraid,” the girl said.
She testified that after Tester raped her, she returned to doing her homework or watching television, and said nothing to anyone during the two years that Tester dated an older family member and was a regular guest at the house. She did not speak until September 2008, when her grandmother asked her if Tester had abused her.
The grandmother testified Thursday that the girl broke down in tears at the question.
But the tears were not in evidence when the girl testified, her flat, emotionless voice striking a contrast with her graphic description of the trauma.
“I felt bad,” she testified Thursday, describing how she felt after the first alleged rape.
When Tester would come by her house weekly in the following two years, “I felt mad and scared,” she said.
Tester, too, betrayed little emotion in his testimony. When Wick asked him about the strain of the prosecution, he said, “Yeah, it’s been rough.”