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Defense attorney Robert Sanger representing Eric Frimpong in February 2008

Paul Wellman (file)

Defense attorney Robert Sanger representing Eric Frimpong in February 2008


Frimpong Case: Part-Time Lover Reconsidered

Chapter Five of Joel Engel’s Eric Frimpong Investigation


Read the previous chapter here.

In court, defense attorney Robert Sanger asked Jane Doe about phone calls between her and Benjamin Randall on Sunday afternoon, February 18 - less than two days after the incident. According to Doe’s phone records, she had called Randall at 4:43 p.m. for 82 seconds, though without Randall’s records - which neither Sanger nor the prosecution subpoenaed - it is impossible to ascertain whether the two spoke or Doe left a voicemail message. (Barron’s failure to subpoena Randall’s records is particularly curious in light of her subpoenaing several months’ worth of cell records for both Eric’s friend Krystal Giang and his girlfriend, Yesenia Prieto - neither of whom, unlike Randall, were ever under suspicion. Text messages for everyone seem to have slipped under even the prosecution’s radar.) Doe said she did not remember making that call.

Sanger asked whether she remembered the call Randall made to her one minute later, at 4:44 p.m., lasting 146 seconds. Doe answered no, she didn’t remember, then said, “But if that’s the call I think it is, it’s when I told him I didn’t want to see him for a while and I explained to him what happened.”

Sanger did not remind her that she’d already answered “yes” to Barron’s question about whether she and Randall had continued to have an “intimate relationship.” Doing so would have allowed him to suggest that maybe the call had been about something other than not seeing Randall for a while. There was, after all, good reason to think so: Over the eight days following the incident, Doe and Randall placed nine calls to each other - seven of them initiated by Doe.

* * *

It is reasonable to conclude that Sanger might have succeeded in pointing the finger of reasonable doubt at Benjamin Randall if only he’d scrutinized the phone records.

During trial, Barron asked Randall when he’d next spoken to Doe after seeing her with Eric on Del Playa. “I believe,” he said, “it was either the following Sunday or Monday.”

And had you attempted to speak with her at all that weekend prior to speaking to her on Sunday or Monday?” Barron had asked.

No,” Randall said.

This was not true. Randall had left a voicemail message for Doe at 11 p.m. Saturday night, 22 hours after the incident. An hour later, Doe had checked her voicemail, then immediately dialed Randall’s number and spoke for 69 seconds. Almost upon hanging up, she redialed her voicemail and, just past midnight, called Randall again for 24 seconds.

Why the urgency to connect? If Doe and Randall had been boyfriend-girlfriend, one would expect such a flurry. But both insisted on characterizing their relationship as casually sexual. Doe had told Barron in April that the last time she slept with Randall prior to February 16 was February 13 - “‘Cause it was the day before Valentine’s Day, and I didn’t want to be with him on Valentine’s Day.” Randall, meanwhile, claimed that seeing her with Eric did not provoke him. “We weren’t together,” he explained, “so I had no reason to feel jealousy or anything like that.”

But Doe and Randall could have portrayed their relationship as less than passionate to avoid the inference that, out of jealousy, he, not Eric, had assaulted Doe. Indeed, a month before trial the prosecution re-interviewed Randall after he “disclosed some information that was not found in prior law enforcement reports,” according to a report filed by D.A. investigator Kimes. That information, which Sanger never asked Kimes about directly, appears to have been that Randall had seen Eric and Doe walking with their arms around each other.

Whatever Randall told Kimes at that subsequent interview was good enough for the prosecution, which didn’t bother making dental molds of his bite or photos of his teeth until well into trial, claiming surprise that the defense was positioning him as a possible culprit. Under cross-examination, though, Randall reluctantly conceded to Sanger that, yes, he had been jealous seeing Doe walking with Eric.

In retrospect, the line from Kimes’s report that may be most revealing was also its most overlooked. After the incident, Randall said, Jane Doe “was drinking alcohol less.”

* * *

On Tuesday, February 27, at 10:45 a.m., Jane Doe called Detective Kies on the cell number he’d given her, the 14th time she’d called him since the incident 10 days before. She’d also received four calls from him, and called two other numbers at the Santa Barbara Sheriff’s Department. We don’t know what was discussed during those previous calls, because the detective did not file reports. On this call, according to Kies’s report, Jane Doe told the detective that a friend named Benjamin had seen her with Eric and wanted Kies to call him.

A few minutes later Kies called Benjamin Randall and recorded only his side of the conversation, later omitting key details from a written report.

Do you remember what night [the incident] was?” Kies asked Randall. “Would that be a Friday or Saturday night, do you know?” Perhaps unsure how much he should reveal, Randall improbably said he couldn’t remember, an answer that seems not to have struck Kies as doubtful.

Randall explained that he went to high school with Doe. Asked how he knew Eric Frimpong, Randall said he saw a photo of Eric that had accompanied a story of the arrest in the Daily Nexus, UCSB’s school newspaper, six days before. (Since Randall didn’t attend UCSB, it seems probable that a university student with a connection to both him and the case called the story to his attention. A logical presumption is that it was Doe. Not only did she call him on the day the story appeared, but one of Randall’s suitemates from that year told me he had no idea Randall was connected to Jane Doe, suggesting that Randall didn’t readily share this information.)

Would you recognize him as being the same guy she was with?” Kies asked.

From a legal standpoint, this was a meaningless question. There would be no value in his identifying someone who’d already been arrested and publicly accused.

Randall would testify that he surfaced because he wanted to “help out [Doe]” and “felt I had a reason to believe that I had an idea of who she was walking with during the time that I saw her.”

Maybe. But even if he hadn’t learned about the alleged rape until he talked to Doe on Sunday afternoon, he waited an extra nine days after that, and six days following the Daily Nexus story. He had not gone to the Sheriff’s Department the morning after her phone call, submitted to an interview, and sorted through photos to identify Eric. This was a logical inconsistency that neither Kies nor Barron nor Sanger questioned him about.

In his phone interview with Kies, Randall claimed that he called Doe just after seeing her walking on the street to ask who she was with. “She said, ‘My new friend Eric,’” Kies repeated. “Did she seem like she was intoxicated? : Not crazy [drunk]?”

The conversation turned to where on Del Playa Randall had seen Eric and Doe walking, which Randall said was near Camino Pescadero, and then whether Randall had “first talk[ed] to [Doe] today about coming forward and giving this information.”

Randall’s answer cannot be determined from the context. Whatever he claimed, it seems inexplicable that Kies was so easily mollified. After all, Eric had already been arrested, and his own roommates had identified Doe as the young woman he’d introduced them to. So with no uncertainty about whether the alleged perpetrator and she had been together, which was all that Randall’s testimony could provide, it’s logical to ask why Randall and Doe chose to inject him into the proceedings.

But Kies did not explore Randall’s motives. His questioning betrayed no skepticism or suspicion, even when the interview took an unexpected turn.

Kies said, “Okay, cool bro’” and was about to hang up when he decided to ask Randall how much he’d been drinking that night. Randall’s answer provoked the next question: “And I’m sorry, we kinda glanced over this before. Did you mention that you and [Doe] had been seeing each other? : You hooked up a couple times? : Okay, were you guys intimate? : Okay, all right, that’s cool. Were you surprised to see her walking with someone else?”

Here, Randall gave his longest answer of the interview, to which Kies responded, “I gotcha, okay. Were you guys having an argument at that time? : Okay, sounds good, dude.”

Kies either didn’t recognize that Randall could have been “the guy” described by Eric, or he ignored the possible revelation. His report of the interview underplayed Randall’s confession that the two were intimates, and omitted Doe’s nondisclosure of that fact when she’d called him.

***

On March 22, Detective Kies swabbed the inside of Benjamin Randall’s mouth. “The reason for collection of Randall’s DNA,” he wrote in his report, “was because he and the victim had consensual intercourse during the evening of 02/13/07.”

This was a non sequitur. In truth, Kies was forced to collect Randall’s DNA because the Department of Justice lab results, dated weeks before, had concluded that the DNA found in Doe’s underwear was not Eric’s.

One can imagine consternation both at the Sheriff’s Department and the District Attorney’s. If the semen didn’t belong to the alleged rapist, then whose was it? The possibility existed that somewhere out there was an unknown assailant - or that Jane Doe had had sex with someone she didn’t remember or hadn’t mentioned. Either way, that would have tended to absolve Eric. Good thing, therefore, that Benjamin Randall had come forward just a few days prior. As Doe’s lover, he was someone whose genetic residue in her panties might be justified without severe consideration given to dropping the charges against Eric. It’s not inconceivable that sheriff’s deputies and prosecutors found themselves hoping for a match on Randall’s DNA.

Kies’s report of the swabbing unintentionally betrays that, because in no conceivable way could the alleged consensual sex on February 13 have had direct relevance to the case.

But by citing February 13 as the date of Doe’s previous sexual experience with Randall, Kies was accidentally revealing information material to the case that Doe had not told the SART nurse and would not reveal to the prosecutor for another three weeks. (The information had not come from Randall’s phone interview, either. Asked by Kies when they’d last had sex - “just in case there’s DNA and stuff like that” - Randall apparently said, “About a week before.”)

Kies did not file a report of the interview with Doe when she told him about February 13, leading one to speculate what else they talked about and why the subject came up at all.

These are not petty queries or paranoia. The unknown answers are fodder for the rational belief that the state’s continuing investigation ignored evidence that might have pointed to others and exculpated Eric. For example, when the DNA was matched to Randall, the police or prosecutor could have called Eric in, shown him a photo array that included Randall’s face, and asked him to identify “that guy” he claimed to see with Doe. A positive I.D. might have changed everything, so why didn’t they? Maybe because it might’ve changed everything. Regardless, their not doing it speaks to the willful prejudice of the investigation.

Read the next chapter in this series here.

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Joel Engel is the bestselling author of more than a dozen books. As a journalist, he has written on a wide variety of subjects for many national publications, and contributed frequently to the New York Times. You can contact him at joelengel@yahoo.com.

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