Updated Wed, Jul 2, 2014 10:29 am
After numerous requests for extensions to file his appeal, the attorney for a convicted rapist says his client did not receive a fair trial.
Based on alleged "misconduct" by the prosecution, along with "ineffective assistance" from his own attorneys, Levi Canterbury was never allowed the right be presumed innocent, according to public defender Eric Hedrick, who is representing Canterbury in his appeal.
But the prosecution is asking that the court dismiss the appeal before it begins, based on the tardiness of the appeal brief filed by Hedrick.
Canterbury, 23, was sentenced in August to seven years in prison for two counts of rape. He was charged after he knowingly engaged in sexual conduct with an Ohio University female student who was "substantially impaired" at the time of the sexual contact, according to previous Athens Messenger reporting.
The other rape charge stemmed from his using force when raping the woman.
Canterbury was arrested after the woman reported being raped. The woman had been walking along a highway in Athens when Canterbury picked her up in September 2011. He took her to a parking lot and raped her before dropping her off on Court Street in Athens.
In the appeal, Hedrick said the jury that convicted him of the crimes never had a chance to presume Canterbury innocent because of the prosecution "repeatedly" expressing their personal beliefs and vouching for the credibility of the victim, according to the appeal brief filed in Athens County Common Pleas Court.
The appeals documents cite numerous times in the trial transcript in which they say prosecutors "asserted the legal conclusion" that Canterbury had raped the victim.
"During their initial and rebuttal closing arguments, the prosecutors stated their beliefs approximately 35 times that (Canterbury) was guilty of raping (the victim)," Hedrick wrote.
In a part of the prosecutors' arguments in which they called Canterbury a "predator," Hedrick said the assertions made by the prosecution were "inflammatory and highly prejudicial."
The prosecution also asserted more than 20 times throughout the trial that Canterbury was lying, according to the appeal, and vouched for the victim improperly, Hedrick claimed.
"The prosecutors' vouching was especially problematic in this case as the only witnesses to the encounter were (Canterbury) and (the victim)," Hedrick wrote. "Because the credibility of (the victim) was unfairly bolstered, while that of (Canterbury) was unfairly attacked, (Canterbury) was deprived of a fair trial."
The defense attorneys for Canterbury were also at fault for the conviction, because they never objected to the prosecutors assertions or their vouching for the victim. The defense attorneys also never objected to the improper use of "expert" witnesses by the prosecution, Hedrick argued.
"Given the prejudicial impact of the State's misconduct, there is a reasonable probability that, had defense counsel objected to the State's misconduct, the outcome of the trial would have been different," Hedrick concluded.
A hearing on the appeal has not yet been scheduled, but the prosecution has asked that the court dismiss the appeal because Hedrick did not meet the June 13 deadline for filing a brief. The brief was filed 10 days later.
A hearing on the motion has not been scheduled either, according to the clerk of courts database.