Monday, June 25, 2012

Man convicted on rape charge petitions for release after victim recants testimony

ST. CROIX - A 27-year-old man who has spent the last eight years in prison for raping a 12-year-old girl has petitioned the court for release, saying he is being unlawfully detained after the victim in the case repeatedly recanted her story and now claims no sexual contact ever happened.

After a two-day trial in June 2004, Hector Ledesma was convicted of first-degree aggravated rape and first-degree unlawful sexual contact for having sex with the girl when he was 18.

He was sentenced to 15 years on each charge.

During Ledesma's trial, a jury found him guilty of having sex with the girl at his Mon Bijou home. The girl's mother reported the rape to police days later, and he was arrested after the girl said that she had sex with him.

Superior Court Judge Edgar Ross sentenced Ledesma to the mandatory minimum of 15 years on the rape charge and five years on the unlawful sexual contact charge, ordering that the sentences be served concurrently.

The victim, who is now 21, has written a subsequent letter to the court since the trial and recently posted a 30-second video online saying that she wanted to know why Ledesma was still in jail after she had said that she lied and claimed that they had never had sex. She said it was unfair that he is incarcerated for a crime he did not commit.

In 2007, Ledesma filed a writ of habeas petitioning the court to release him from prison claiming he was being unlawfully held.

The girl's mother also filed an affidavit with the court in support of Ledesma's petition, saying that the girl had confessed to her on repeated instances that the rape never occurred. The mother asked the court to have the sentence revoked and requested that Ledesma's record be expunged.

In response to Ledesma's petition, Assistant Attorney General Pamela Tepper told the court Ledesma already had appealed the conviction to the District Court requesting a new trial. The court upheld the conviction because it found the motion to be untimely and the assertion that the evidence was insufficient to be incorrect.

When Ledesma petitioned the Magistrate Court for a writ of habeas corpus, he raised the issue of the victim and her mother's recantation, Tepper said. During a hearing in November, the victim testified, but her mother refused to appear, according to Tepper.

Tepper argued that the facts were outlined before and that during the trial the girl's mother testified that she believed her daughter was sexually active. The girl's mother also said she thought her daughter was involved with Ledesma, and the girl's mother told police that she had confirmed that before filing the report, Tepper said.

During the investigation, police determined that the charges were substantiated and believed that some of the girl's stories were false, intended to protect Ledesma.

Tepper said the jury and judge observed the demeanor of the victim and her mother during trial and Ledesma's demeanor during his testimony, and the jury believed the victim and her mother and all other witnesses because of the detail of their testimony and their credibility. The prosecution believes the girl is fabricating stories now because she is an adult with children of her own and harbors some sense of guilt that Ledesma is still in prison because of her actions and her statements, according to Tepper.

"What Ledesma wants this court to do is act as a 13th juror and re-evaluate the testimony, the credibility of the witness and weigh the evidence differently, hoping for different results," Tepper said in her response to Ledesma's petition. "This is the purview of the jury and not the purpose of the habeas corpus proceeding."

Ledesma's mother, Luisa Saldana, said that when prosecutors learned of the girl's letter recanting her statement and reviewed Ledesma's case, they told her they needed a hearing, then release would be granted.

Saldana said that because the girl has since relocated and was unable to testify in person, prosecutors said they would allow for a video conference hearing if her family would pay for it. She said she paid for the hearing, the girl testified and everyone heard what she had to say.

"Now where is justice to protect my son," she said. "I need someone to let me know why he is still in jail."

Prosecutors said that since the petition was filed, they have learned that Ledesma has been assisting the girl, who has left the territory, with rent and other personal obligations in exchange for her favorable testimony.

Attorney Charles Lockwood, representing Ledesma, disputed that allegation and argued that the government has been proceeding with a false premise that they got truthful testimony from the girl at trial. What they have really done, he said, was show that while they know the girl is known to lie, they are turning a blind eye and using her testimony at trial to preserve the conviction.

Lockwood said that Ledesma never tried to buy the girl's testimony of recantation and that the only money he gave her since the trial was to cover the fees associated with getting a notary and express mail for documents she was sending to him to move the petition forward.

Lockwood said the government could have questioned the girl to determine her credibility before trial but did not.

He said the government's contention that Ledesma must show that the government knowingly used the girl's perjured testimony to convict him in order to obtain his release is incorrect. He said the 3rd Circuit Court condemned the view that wrongfully convicted individuals should remain incarcerated unless they can show that the prosecutor knew perjured testimony was being given during the trial.

"Mr. Ledesma has shown by more than preponderance of the evidence that he never had sex with the girl," he said. "Her uncontradicted recantation of her previous testimony demonstrates that Mr. Ledesma is entitled to his release, based on his wrongful conviction and factual innocence."

When a convict files a writ for habeas corpus, he must assert that his conviction raises constitutional violations, Tepper said. The standard for granting a petition for habeas corpus is not preponderance of the evidence, but whether the petitioner has been deprived of a constitutional right, she said.

Earlier this month, Magistrate Jessica Gallivan, who presided over the November hearing, issued a recommendation order about Ledesma's petition.

As a threshold determination, the court must ascertain whether the recantation testimony of the victim is reliable, Gallivan wrote. In Ledesma's case, the inherently suspicious nature of the victim's recantation is further exacerbated by the girl saying that a majority of her testimony at trial was in fact false and that she was scared and pressured into testifying by police, according to Gallivan.

"Such an admission of perjured testimony only raises the level of suspicion around the recantation," Gallivan wrote.

After having a full opportunity to observe the demeanor of the witness, Gallivan wrote, she finds the girl's testimony to be unreliable and her recantation to be unbelievable.

"While the testimony given at the evidentiary hearing generally refutes her statements during the investigation and trial, the inherent unreliability of recantation testimony and low credibility of her current statement should lead the court to refrain from disturbing the findings of the jury," Gallivan wrote. "No act, omission or event exists entitling Ledesma to a discharge from his lawful imprisonment."

She asked the presiding judge of the V.I. Superior Court to further deny the writ of habeas corpus.
As of Friday no action has been taken on the magistrate's recommendation to deny the petition.

- Contact reporter Fiona Stokes at 714-9149 or email fstokes@dailynews.vi.

http://virginislandsdailynews.com/news/man-convicted-on-rape-charge-petitions-for-release-after-victim-recants-testimony-1.1333902