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Appeal to the Louisiana Supreme Court

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This case has now been appealed to the Louisiana Supreme Court. The appeal was sent in May, 2013 and it usually takes from 12 to 24 months before the hearing. Below is the text of the appeal brief. In Nov. 2013, The Louisiana Supreme Court decided not to hear the appeal.
STATEMENT OF FACTS

Rick Seaton is not a rapist. He stands falsely accused of rape by K.W., a young woman from Florida who attended the 2010 Independence Bowl in Shreveport. Rick was, at the time, an administrative officer with the City of Shreveport, whose duties that evening included overseeing the buses shuttling people to and from the game. K.W ., who was in town for the game with her mother, her grandparents , and her boyfriend, spent the afternoon before the game drinking Jack Daniels. She was unsure how much she drank because, according to her testimony, her cup "was refilled a lot." Once the game began she switched to beer.
During the game, she and her boyfriend had a disagreement with someone sitting near them and left the stadium. They began to argue when they got outside. Police overheard the argument and intervened, arresting K.W .'s boyfriend despite her protests they leave him alone. Before taking him away, the police gave K.W . her boyfriend's cell phone. After her boyfriend was taken to jail, K.W. began seeking ways to get to the jail, but none of the officers would take her. Instead, against her wishes, police officers put her on one of the shuttle buses with instructions to return to her hotel. Rick, who saw the arrest take place, was still at the shuttle bus when the last officer walked away. K.W. was still begging to go to the jail and even offered Rick five dollars for a ride. Though he did not take the money, Rick did eventually agree to give her a ride to the jail.
K.W. testified she was so drunk at the time of the Bowl game encounter with the police she only vaguely remembers her initial contact with Rick. She testified she does not remember getting on any buses, nor does she remember getting on a golf cart with Rick. She only vaguely remembered being on a golf cart in a dark parking lot. In walking to the golf cart, she did not stumble, sway or trip over the curb. She remembered getting into a car that "looked like a police car," and riding iri it with Rick to the jail. According to her testimony, before she got out of the car at the jail, Rick tried to kiss her on her neck , which made her uncomfortable. But, footage of her entering the jail lobby shows her looking back over her shoulder and casting a flirtatious smile in the direction of Rick's car [1]. K.W. went into the jail, where she talked to a bondsman named Jonathan Long who refused to help her. Only when he refused to help her did she begin to break into tears and tell Mr. Long she was uncomfortable with the man who brought her there. Shortly after Mr. Long left, according to the jail surveillance video , she sat down and began using her phone. Seconds later, according to the time stamp on a text message she sent, her boyfriend's phone received the following text: "Tell the police that officer john rape me baby plz I’ll do anything for u but I can't f**k this man no more".[2] Her story was she tried to get help from someone in the jail because she was uncomfortable with Rick, but no one helped her. After she had been inside about fifteen minutes, Rick Seaton entered the jail. Four minutes later, she left with him. Standing by the door for several seconds waiting to be buzzed out, she neither swayed nor looked distressed or afraid.
She told Rick she needed to use an ATM and a phone. This, despite the fact she had been using her cell phone while she was in the jail lobby, both before and after Rick entered the building. Rick told her his office had an ATM and she could use his phone there. She testified she thinks they went to his office when they got to Government Plaza. She admitted she sat in his lap while she made phone calls, but claimed it was because he pulled her down and held her there . After her last phone call, which she characterized as a "fake" call to a bondsman, they started to leave. At this point, Rick offered to show her the mayor's office. She thought that would be "cool," so she went along. She claims to have been nervous, uncomfortable and scared, but voluntarily followed Rick to the mayor's office.
Once in the mayor’s office, according to her testimony, she “hid” in the mayor’s private bathroom for a few minutes.
According to her testimony, she sent the “officer John” text to her boyfriend’s phone from inside the mayor’s bathroom.
When she came out she testified Rick “grabbed” her and put her up against a wall before pulling her to the couch and “ripping” her pants off. She claimed her bellybutton ring was ripped out in the process. Then in her version of the story, although she informed him she was on her menstrual cycle, Rick performed oral sex on her (after pulling out her tampon). He then returned to his office for a condom, leaving her alone with at least two functional phones -her boyfriend's cell phone and the land line [3]. When he came back in, she testified she smelled a "latex glove" smell before he penetrated her vaginally with her on her back , then turned her over on her stomach and penetrated her again.
Then, they both got dressed and walked downstairs to the ATM. She attempted to get enough money for the bond, but was unsuccessful. At this point, they went back upstairs together to look for her underwear. Others saw the two of them outside at the ATM, and noticed no signs of distress. When they could not find K.W.'s underwear, they left again, and Rick took K.W . to her hotel at Sam's Town. -
After Rick dropped K.W. off at Sam's Town, she went directly to the bar, where she stayed for approximately five minutes before going to look for her mother. Her testimony was she went there to write down Rick's license plate number, which she had memorized- a process which could not possibly have taken five minutes. After spending five minutes in the bar K.W. finally looked for her mother , whom she found in the lobby in the company of a policeman. After entering Sam's Town and before encountering the police officer accompanying her mother, K.W. eschewed going to the front desk and asking for security or a call to 911 and instead chatted with the bartender and another patron.
As a result of this incident , Rick was fired from the City of Shreveport. His wife of fifteen years divorced him. At the time of trial, he was embroiled in a custody battle in which his wife was seeking sole custody of his children. His reputation, indeed, his entire life, was destroyed.

________________________

  1. Undersigned counsel believes a viewing of the various videos entered as exhibits in this matter would assist this Honorable Court in a conscientious review of this matter.
  2. The time stamp on this text is 8:51 p.m. Footage from the jail's surveillance system shows she was sitting in the jail lobby at 8:50p.m., apparently sending a text. See Exhibits "B" and "C" to Applicant's original brief to the Second Circuit Court of Appeal.
  3. She claimed her cell phone battery was dead.


ACTION BELOW

By Bill of Information filed on April 4, 2011 , the State of Louisiana charged Rick Seaton with one count of forcible rape and one count of abuse of office. (Vol. 1 p. 6). On September 27, 2011, Rick waived his right to a jury trial and elected a bench trial. (Vol. I p. 2; Vol. II p. 325). Bench trial commenced on January 17, 2012. (Vol. I p. 2; Vol. II p. 328). At the conclusion of the State's evidence, Rick's trial counsel moved for a judgment of acquittal. That motion was denied. Vol. IV pp. 687-92). At the close of the trial, the Trial Court found Rick guilty as charged on both counts. (Vol. V p. 944).
A bond hearing followed on February 1, 2012. Rick 's father, a retired Methodist pastor, and one of Rick's fellow church members testified on his behalf at that hearing . Nevertheless, the Trial Court denied an appeal bond. Vol. V p. 972). On March 12, 2012, the Trial Court denied Rick's Motion for Post-Verdict Judgment of Acquittal. Following testimony from four witnesses who testified on Rick's behalf , the Trial Court imposed sentence of fifteen years at hard labor, with the first three years to be served without benefit of probation, parole or suspension of sentence as to the count of forcible rape. Further, Rick must register as a sex offender for the rest of his life. As to the count of abuse of office, the Trial Court imposed three years at hard labor. The sentences were ordered to be served concurrently.
(Vol. 5, p. 1003)
Rick's trial counsel filed a Motion to Reconsider Sentence on April 9, 2012. Vol. II p. 255). That motion was denied without hearing on April 10, 2012. (Vol. II p. 257). A notice of appeal was timely filed on April 20, 2012; and, the Louisiana Appellate Project, through undersigned counsel, was appointed to represent Rick for purposes of appeal. Vol. II pp. 298-303). Following briefs and oral argument, the Second Circuit Court of Appeal affirmed Rick's convictions and sentences.


ASSIGNMENT OF ERROR

The evidence adduced at trial was insufficient to support convictions for forcible rape or abuse of office. The testimony of K. W. was the only evidence portraying a consensual sexual encounter as criminal conduct. The physical evidence, rather than supporting her version of events, refuted the reported rape.
SUMMARY OF ARGUMENT

Far from the innocent, doe-eyed victim K.W. and the Second Circuit portray, she was, a sexually active young woman who, by her own words, had no qualms about using sex to get what she wanted. She wanted her boyfriend released from jail before her family could learn of his arrest.
In the course of the events taking place on the night of December 27,2010, she sent a text to her boyfriend's phone: "Tell the police that officer john rape me baby plz Ill do anything for u but I can't f'**k this man no more." A woman who will have sex with another man "for" her boyfriend is hardly an ingenue, but is, rather, a manipulator.
K.W. had a consensual sexual encounter with Rick Seaton after her boyfriend was arrested, then claimed it was rape. She lied to her mother, to the police, and to the Trial Court- but the evidence shone a light on her lies. There is a plethora of contradictions between the evidence and K.W.'s story, which contradictions the Trial Court and the Second Circuit either ignored or attempted to explain away. Even the Second Circuit's own opinion contradicts itself in an attempt to explain the irreconcilable internal contradictions: at page 5 of the opinion, it states, "While in the bathroom of the mayor's office, K.W . sent the following text to her boyfriend: 'Tell the police that officer john rape me baby plz I’ll do anything for u but I can't f**k this man no more;'" at page 14, "In addition, the defendant's timeline and testimony show that the victim's text to the boyfriend's phone could have been sent from a restroom as the victim recalled. However, the text would have been sent from the hallway restroom ..." This, despite the fact the jail's video surveillance system shows she was sitting in the jail lobby typing on her phone at 8:51, the time the text in question was sent. This is only one example of the many contradictions between the evidence and K.W.'s testimony that were dismissed or ignored by the Courts below.
The evidence shows Rick Seaton was convicted on the basis of a story told by a young woman upset her boyfriend got arrested and willing to do or say anything she believed would get him out of jail without her mother finding out. Rick's convictions for forcible rape and abuse of office are gross miscarriages of justice.


ARGUMENT

Renowned science fiction writer Isaac Asimov once observed, "The closer to the truth , the better the lie." K .W.'s story is close to the truth. She and Rick did have sex. Consensual sex. The lie, well-crafted though it may have been, was not supported by the physical evidence . The Second Circuit "hung its hat," so to speak, on the notion that "K.W.'s testimony alone was sufficient to prove the commission of forcible rape by the defendant." (Opinion, page 15). In its entirety the law states: "In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion ... This is equally applicable to the testimony of victims of sexual assault." State v. Drake, 46,232 (La. App. 2 Cir. 06/22/11), 71 So.3d 452, 459 (emphasis supplied) . In this case, however, irreconcilable conflict does exist between the "victim's" testimony and the physical evidence.
+ K.W. could not have sent the "Officer John" text from inside the mayor's bathroom, as she testified .
+ K.W. knew , at the time she claimed to have sent the "Officer John" text, that Rick Seaton's name was Rick, not John. She knew this because she had been in Rick Seaton' s office before entering the mayor's bathroom. The office where Rick 's name was displayed on his desk. The office where she claimed to have learned his name.
+ K.W. knew his name was Rick before leaving the stadium area with him. She referred to him as "Officer Rick" while still on the shuttle bus, prompting Rick to point out he was not an officer, but was an administrative officer for the City.
+ K.W. was not intoxicated enough to have experienced "blackouts" or memory loss, as she claimed .
+ K.W. had at least one functional phone with her at all times, and had no need to go anywhere to use a phone or to use one of Rick 's phones . She testified the reason she did not use her phone to make voice calls from inside the mayor’s bathroom was that Rick would have heard her talking. Why then would she have asked or needed to use Rick’s cell phone or to use a land line?
+ Rick sustained no injuries (scratches, bruises, etc.) as he would have if K. W. had tried to “fight him off,” although she testified she tried to stop him.
+ N o one ever found K.W .'s panties, belly button ring, or tampon , all three of which would have been located in the mayor's office, had K.W. been telling the truth .
+ The condom Rick used was non-latex, and would not have produced a "latex glove" smell as K .W . claimed she detected when Rick returned to the room with a condom. (See Exhibits 46-48 showing brand name of condoms- "NaturaLamb," a non-latex condom).
+ Five men saw K .W . moments after the alleged rape, when she used the ATM outside Government Plaza- none of them perceived her to be in any distress . Nor did she attempt to approach any of them to report she had been a victim of a rape.
+ It does not take five minutes to write down a license plate number one has memorized, which is how long K.W. stayed in the bar at Sam's Town before going to look for her mother.
+ SANE nurse Hubbard did not testify the "slits" in K.W .'s vaginal opening were indicative of "rough intercourse," as stated by the Second Circuit. To the contrary, Nurse Hubbard testified that the presence of the slits did not necessarily establish that rough sex occurred .

“OFFICER JOHN” -- According to the time stamp on the text message K.W . sent to her boyfriend's phone, she sent the text between 8:50 and 8:51p.m. (See Exhibit "B") According to the time stamp on the jail's • video surveillance system, at 8:50p.m., K.W. was sitting in the lobby of the jail, manipulating buttons on her phone. (See Exhibit "C"). According to the surveillance logs from Government Plaza, Rick and K. W. did not enter the mayor’s suite (from where she claimed to have sent the text) until 9:04 p.m. Even if K. W. sent the text from the hallway bathroom in Government Plaza as the Second Circuit opined in attempting to explain away this contradiction between K. W.s story and the evidence, it would have been sent after 8:56 P.M.—and K. W. offered no testimony she used the hallway bathroom.

The State elicited no testimony as to what, if any, difference existed between the various system clocks in this case. Deputy Gerald Posey testified while the various systems would not match precisely, they would be close. K.W . was very clear in testifying the text was sent from the mayor's bathroom. For this to be true, there had to have been a difference of at least 14 minutes between the system clock at the jail and the cell phone tower's system clock. There would also have had to have been a difference of at least that much between the cell phone clock and Government Plaza's surveillance system. Had there actually been such a drastic difference, it would have been a simple matter for the State to put on evidence of exactly how much of a difference existed between the various clocks. It did not do so. Why? Because putting on evidence of how closely set the various system clocks were would have proven K.W. was lying.
The Second Circuit dismissed Rick's presentation of the sequence of events, in part because it did not believe Rick could have made the drive from the jail to Government Plaza in two minutes' time (between 8:51 and 8:53). The two facilities are 1.1 miles apart. At night, with no traffic downtown, it is more than plausible for him to make that drive in that time frame.
Even putting aside the discrepancies with the clocks, K.W. knew Rick's name was not John at the time she sent the text. If she sent it from the mayor's office bathroom, she sent it after having been in Rick's office, where his name is displayed on his desk. If she sent it earlier, from another bathroom (which she did not testify she used), she sent it after having been on the shuttle bus where she referred to Rick as "Officer Rick ." The only conclusion that makes sense is that K.W . sent the "Officer John" text from the jail lobby, as the footage shows, just after she spoke to a bondsman named Jonathan who refused to help her.

Too drunk to remember? -- K.W. testified she had memory loss for parts of the evening, presumably due to her level of alcohol consumption. She claimed she could not remember the subject of the argument she and her boyfriend had with the person sitting near them . She claimed she did not remember anything about a bus. She claimed she did not remember getting on a golf cart. From there, however, her memory seemed completely unfazed by the alcohol.
In none of the surveillance videos does K.W . stumble or show other visible signs of intoxication. The State's expert testified , using retrograde extrapolation based on the blood sample taken from K.W. between 1:30 and 2:00a.m., she would have been between .11 and .16 BAC between 8:00 and 9:00p.m . (This assumes she had nothing to drink while she spent five minutes in the Sam's Town bar after Rick dropped her off, supposedly just to write down his license plate number).
According to Dr. James Booker, the defense expert, this level would not have been enough for the onset of stupor or blackout. Usually, a BAC of .27 to .30 is required before the onset of stupor. Based on his observation of the videos, and the State's expert's testimony as to her BAC, Dr. Booker opined she was in the "excitement stage" of intoxication - a range well below the onset of "stupor". The video of K.W. on the bus showed that "excitement stage" in her speech and the bouncing of her legs as she sat and talked . Further, all the footage of K.W . shows her walking perfectly well, while wearing high heels, and at some points walking while texting- no mean feat for a perfectly sober person . She does not sway, wobble, or show any signs of intoxication in the videos. Her claims of being so intoxicated she could not remember parts of the encounter are not credible.

Other Discrepancies

K.W. had not only her own phone, but her boyfriend 's, as well, during the entire encounter. Any argument that both phones were dead is belied by K.W .'s testimony that the reason she did not use either phone to make calls from the mayor's bathroom was her fear Rick would hear her talking. Why, then, would there have been a need for her to use one of Rick's cell phones on the ride to Government Plaza? Why the need to use a land line? Sitting in the jail, she not only had at least one phone she knew was working, but she also had a list of bondsmen's numbers . She could have accomplished any calls she needed to make from inside the jail lobby. In truth, she did not need to use another phone- she just wanted to put someone in a position where she had the advantage- the bondsman or Rick Seaton, it didn't matter. Either of those men would have been in a perceived position to help her accomplish her goal: the boyfriend's release from jail.
If K.W. had made any attempt to "fight off' Rick during their encounter, Rick would have sustained some injury- scratches, bruises, bite marks, something . She testified she tried to push him off, and that nothing she did to stop him worked. Where is the evidence of these things she did to try to stop him? No such evidence was presented because no such evidence existed .
Three items were "left behind" in the mayor's office, according to K.W.: her panties , her tampon, and her belly button ring . Despite a thorough search by capable, experienced police officers, none of these items were ever found . Besides, why would K.W. have returned to the scene of the "rape" with her "rapist" to find her panties? A woman who had just been raped would not care enough about the loss of a pair of underwear to put herself in a position where she could be further victimized .
Photographs of the condoms found in Rick 's office during that same thorough search show the condoms were non-latex "NaturaLamb" condoms . Non-latex condoms do not produce a "latex glove" smell. K.W. testified she smelled a "latex glove" smell when Rick re-entered the room with a condom. Perhaps had she seen the packaging, she would not have erroneously added a detail inconsistent with the physical evidence.
K.W . claimed she and Rick went downstairs to use the ATM after the "rape" occurred . Five men - four air conditioner repairmen and one city employee - saw her and Rick approach, then leave, the ATM . None of them perceived her as disheveled or in distress of any kind; arid, video footage of her during that time frame supports their perception . In the footage, she appears calm, relaxed, and comfortable, which may be why she raised no alarm .
K.W. claimed she went to the bar at Sam's Town after Rick dropped her off so she could write down his license plate number, which she had memorized. Footage from the Sam's Town video surveillance system reveals she sat in the bar for five minutes- far more than long enough to write down a license plate number. She talked with the bartender and another patron, but did not call the police. Plenty of time, in fact, for her to write down the number and have a drink, which would cause her BAC at the time of her blood test to indicate she was more intoxicated than she really was during her encounter with Rick . Since the view of her at the bar was obscured by a pillar, not everything she did while in the bar was caught on tape.
The SANE nurse testified as to four "slits" in K.W. 's vaginal opening. While she did testify these slits could have been caused by rough sex, she admitted the slits were not necessarily proof of rough sex. She also testified K .W . told her she had sex with her boyfriend the evening. prior, and slits like that could last a couple of days.
The Second Circuit commented on the fact defense witness Dan Thomas could not explain the door key-card log entry showing Rick entered the kitchen at 8:54p.m., the same time as he entered the building . The times are reconcilable with each other but for the kitchen door. Rick and K.W. left the jail, entered the garage, entered his office, entered the mayor's office, and left the building. The times on these comings and goings are sequential. Only the kitchen door does not fit this scheme. The Second Circuit used this anomaly to theorize all the clocks are at different, wrong times- but the kitchen door does not correspond with others on the same system. Even so, this does not explain K.W. being in the city jail at the same time as she sent the "Officer John" text. Further, if the kitchen clock is correct, it still contradicts K.W.'s version of events, because she never mentions him going to the kitchen before they go to his office. Nor does her timeline explain when he would have gone in the kitchen to dispose of the condom after they had sex.
Further , the question is whether K.W. 's testimony is contradicted by the evidence- and it is, repeatedly . The State relied on a quantity of time-stamped evidence. It cannot present contradictory evidence then rely on an assumption any part of the evidence that contradicts the sole witness is simply incorrect. The State did not provide any rational basis to discount the physical evidence in deference to K.W .'s testimony.

CONCLUSION

K.W . smiled back at Rick as she walked into the jail. A woman who is uncomfortable in a man's presence does not flash a brilliant smile over her shoulder at that man. K.W . tried to get her boyfriend to tell the police "Officer John" raped her, after a bondsman named Jonathan refused to help her, and, according to her timeline, long after she would have known Rick Seaton's name.
K.W . could not have sent the "Officer John" text from the mayor's bathroom unless there is nearly a quarter-hour difference between the system clocks. In no interpretation does the time on her text coincide with the time K.W. w as inside the mayor's office. The slits in K.W .'s vaginal opening were not necessarily indicative of "rough sex". K.W. did not appear disheveled or in distress by anyone who saw her that evening or in any of the video footage.
K.W. could not have smelled latex when Rick put on a condom that was non-latex .
K. W.s lie, while close to the truth, was still a lie. The contradictions between her story and the evidence bear this out. While, in the absence of such internal contradictions, K.W .'s testimony would have been enough to support the convictions in this case, in the presence of such irreconcilable contradictions, her testimony is not enough to support the convictions. If these convictions are upheld, Rick Seaton remains in prison and remains a convicted sex offender; and, K.W. has escaped the scrutiny her tale of rape deserved. More likely than rape- an 18 year old trying to get her boyfriend out of jail before her mother found out about the arrest got in over her head. She used sex, thinking it was the surest path to getting help. When that •help was not forthcoming , she was left with a boyfriend in jail and an anxious, angry mother. Confronted by her mother, accompanied by the police help K.W. had never requested, K.W. began to tell the tale she had more than enough time to concoct while in the bar at Sam's Town.

Respectfully submitted,
LOUISIANA APPELLATE PROJECT




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