Eric Frimpong
Paul Wellman

Easily the most noteworthy event of the last two days of testimony in the rape trial of UCSB student Eric Frimpong would have to be the testimony of Judy Malmgren, a nurse and certified sexual assault response examiner. Malmgren described the examinations she performed on both the alleged rape victim and Frimpong himself.

Malmgren said the alleged victim did not appear to be intoxicated as she understood questions and responded coherently as she was interviewed during the examination process. Malmgren recalled that she obtained a urine sample, which is used to perform a pregnancy test and toxicology exams to determine if the patient has been drugged or has been using drugs. According to Malmgren’s report, the alleged victim admitted to having had vaginal sex with the use of a condom within five days of the night of her alleged rape and had smoking marijuana two days before. The alleged victim also said she’d had seven or eight shots of vodka on the night of the alleged rape.

Malmgren’s report also detailed the numerous abrasions and bruises on the alleged victim’s body from a circular bruise on the buttocks to a reddening caused by burst capillaries on the neck where the alleged victim claimed she had pain from when she was choked. Additionally, the examination revealed four streaked red lines and the alleged victim’s inner thigh resembling a handprint and also detailed the two injuries the young woman had on her face where she claims her attacker struck her. This examination of the body eventually led to a detailed investigation of the alleged victim’s genitals at which point prosecutor Mary Barron asked Malmgren to use a laser pointer to point out to the jury on the overhead diagrams where she found actively bleeding lacerations on the alleged victim’s vagina. These lacerations, according to Malmgren, are common signs of rape. In addition to the lacerations, Malmgren’s investigation also found debris such as sand on both labia of the alleged victim’s vagina. Malice then described how the evidence, including photographs and video of the injuries, was collected, sealed, and handed over to law enforcement for analysis.

After a short break, during which defense attorney Sanger questioned the relevance of the evidence that would be soon shown to the jury, a DVD recording of Malmgren’s examination was presented that showed, in graphic detail, the injuries the alleged victim sustained during her attack. Sanger’s objection was that the attack was not in question, but who had attacked the alleged victim therefore the evidence was not relevant to the case especially since the previous testimony from Malmgren had already established what the video contained. Judge Brian Hill allowed the video to be shown, much to the discomfort of some present. Barron’s intentions soon became clear as a total of eight minutes of footage showed the injuries in a way that Malmgren’s diagrams could not, especially in the case of the facial abrasions where purportedly the attacker struck the alleged victim as she was raped. While previously reported as a possible bite mark, the alleged victim’s facial wounds looked extremely swollen suggesting much harsher violence. The remaining seven minutes of the video were not for the squeamish, as it documented the in depth examination of the alleged victim’s vagina.

The session ended with Malmgren beginning to describe the examination of Frimpong, which took place at 4 p.m. the following day. Malmgren testified that she found no scratches, dried secretions, or other telltale marks of rape on Frimpong’s body after which the court was adjourned for the remainder of the day.

Proceedings earlier that day were more of the standard fare for the trial so fare: Robert Sanger continuing to go on the offensive in his cross examination of witnesses. Sanger’s questions directed at investigators seem to be supporting the strategy that they focused on Frimpong at the exclusion of other suspects. Sanger also seems to be suggesting that the evidence collecting process at some point along the line was tainted. On the stand, Detective Michael Scherbarth tediously recount how he, along with Detective Daniel Kies, handled the investigation of the case, everything from the collection and storage of evidence, to the way they interviewed the alleged victim and how they found Frimpong.

Sanger had Scherbarth examine the pants Frimpong said he had been wearing the night prior, and the pants had a button-up fly, not a zipper fly. The pants, shielded by a clear, plastic evidence bag, also were not cuffed, as Scherbarth had testified on Tuesday that they had been, with sand in the cuff. Frimpong’s shirt was recovered with no sand on it and with no tears in it. Scherbarth didn’t remember collecting any of Frimpong’s shoes either. “You would’ve asked him for his shoes wouldn’t you?” Sanger asked, with the detective responding, “I believe so.”

What happened to his shoes?” Sanger asked. “I have no idea,” Scherbarth responded.

When Kies and Scherbarth interviewed the alleged victim in her dorm that morning, Scherbarth said he remembered Kies using harsh language. Sanger asked if it was pointed toward Frimpong. “In that interview, do you remember Detective Kies say ‘We’re gonna get that asshole’?” Scherbarth responded by saying he remembered the language, but in a more general way not “in reference to the suspect.” Kies also apparently used the word “motherfucker” and “asshole” again to describe the suspect. Sanger asked Scherbarth if he remembered the alleged victim and her friends flirting with the detectives at the end of the initial interview the morning after the incident. He answered, saying they hadn’t been flirting. “Do you remember them giggling and saying, ‘Oh, I want to be a detective’ and things like that?” Sanger asked. Scherbarth responded, “Yes I do.”

Sanger said that the two detectives never focused on anyone beyond Frimpong – including the alleged victim’s intimate partner, Benjamin Randall. Sanger, in his questioning, has suggested Randall was lurking nearby throughout the night. In the original interview, the alleged victim didn’t tell the detectives she had been with Randall. They also didn’t know at the time that Randall’s semen was found in the victim’s underwear that night – a piece of evidence which hasn’t yet been introduced, but has been mentioned by Sanger multiple times. Sanger also read from a transcript of the detectives’ initial interview of the young woman, in which it sounds like the alleged victim believed she had been bit on her right cheek, while Kies seemed to introduce the idea that the mark was from a bite. “Yeah, he bit her, he bit her, the motherfucker,” Sanger quoted Kies as saying.

Thursday was marked by rather quiet proceedings, up until a heated end-of-the-day exchange between Sanger and Barron. In the exchange, Sanger again pointed out many of the specific key points in his defense of Frimpong.

The exchange came after the slow beginning of testimony from Dianne Burns, a senior criminalist stationed in the state’s Department of Justice laboratory in Goleta. Burns has little to no recollection of receiving and analyzing evidence received from the sheriff’s department – it was received almost ten months ago – and thus has to rely on her notes taken at the time, something Sanger objected too early and often. The notes are not part of official business documents, and the notes cannot be used as evidence. Since Burns can’t remember what happened exactly, Barron must now first ask her a question, get a response from Burns saying she can’t remember, and then Barron can ask her to look at her notes to assist her memory. (This reality should lead to a long and tedious examination of Burns tomorrow.)

The issue is an important one, Sanger is arguing, because he wants to know exactly who handled the evidence and what happened to it. “We think there is the possibility of contamination in this case,” he said Sanger also added an objection to the anticipated calling of Dr. Norman Sperber. He contends that he just received a report today that had information saying that bite marks found on the 19-year-old alleged victim’s body do essentially rule out Randall. “We just got a report today [saying] he’s ruling out Mr. Randall,” Sanger adamantly explained. “This isn’t some conspiracy theory on the part of the defense” that Randall might’ve committed the crime. Barron said she intended to call not just Sperber, but a local dentist who will testify about two dental castings-one from Randall and one from Frimpong-he looked at and ruled out a Randall match with the bite marks found on the woman’s face and buttocks.

Sanger said that because he didn’t receive any information from Barron beyond the one-page report, he would need photos and other information taken with regard to the teeth marks, and consult with his own expert. A hearing has been set up for 9:30 a.m. Friday to discuss the issue, before Burns takes the stand again at 10 a.m.

Correction: An editing error resulted in this trial being referred to as a “murder” trial. This has since been corrected. Frimpong is being tried for felony and misdemeanor sexual assault. The Independent apologizes for this mistake.


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