by Tiffany Yeh, Makisha Singh, and Lauren King
The jury foreperson (juror #2) told the judge that the jury had reached a sort of deadlock. She stated that several jury members seemed very firm in their decision. The judge asked each jury member if they thought there was a reasonable probability of arriving at a decision with extra time. The foreperson stated that with a little more time at a different time, a decision would be possible. However, all other jurors said no, with one juror saying that everyone has already stated their decisions. Another juror memorably stated, “No chance in hell.”
The judge asked the jurors if they could come to a decision if the court reread instructions, or had evidence or testimonies displayed before them. All except for the foreperson and another juror said yes. Then, the judge asked what if each side, defense and prosecution, had a limited number of minutes to argue their side. All jurors except the foreperson said no. The foreperson believed that, yes, it would be possible if that were done. The jury had taken three votes, with the outcome of 8-4 each time and the majority (8) voting “not guilty.” The judge then found the jury hopelessly deadlocked and declared a mistrial. In the audience, one girl was bent over crying and another was shaking her head. Another girl had her hand on her forehead in sorrow. These members of the audience were perhaps friends of YX’s. In contrast, a couple of the defendant’s supporters, apparently family or friends, hugged Attorney Christopher Carlos, obviously relieved.
Snippets were heard from jurors’ discussions with Mr. Carlos and Deputy District Attorney Zambor in the hallway. The foreperson was talking to the DDA and expressed the sentiment that some of the jurors seemed like they wanted to be done with the case and that she felt that it was not fair to both sides that this was so. Even from her answers to the judge’s questions, Vanguard reporters could tell that she seemed to hold out hope for the possibility of coming to a decision on this case. The Vanguard both understands that juror’s concern, and can also commiserate with the jurors. This case has been a sobering one and has not been an especially short case, with jury selection that begin last Monday and with the case ending today, more than a week later. A couple times, the judge had the jury start at 1pm, instead of the usual 1:30pm, after their lunch break. Presumably this was done so more could be done per day for this case. The jurors have spent time and effort participating in this case and they have deliberated since around 10am on May 20, with a short break. The verdict was heard around 3pm.
Jurors speaking to the defense attorney discussed the nature of the case. It came down to a case of “he said, she said” – both were intoxicated on the night in question. The psychologist’s testimony was described by one juror as ineffective.
In the small area leading up to the courtroom, two girls were noticeably saddened, with one saying to her friend, “I’m in shock.”
Thursday, May 28, 2015, at 8:30am is when the trial setting for a new trial will occur between the attorneys and the judge.
Closing Arguments for Rape Trial Involving UC Davis Students
With many individuals in the courtroom, presumably concerned friends and family members of the alleged victim or defendant, DDA Zambor had started off the closing arguments in the People v. Her rape trial involving UC Davis students by denying claims that insinuate the alleged victim has been lying. According to Zambor, the alleged victim, who is being referred to as YX throughout the trial, told a nurse during her initial examination that she had used a tampon since the assault. The defense had previously suggested she had withheld this information. Zambor also clarified that the alleged victim mentioned her friend, Jimmy, initially as well, and that she didn’t include this information later was an inadvertent omission. Zambor said her mention of him is in the recording as proof.
The defense attorney, Christopher Carlos, opened his closing argument by claiming that the defendant Her does not have any personality disorder, which he was tested for. He also claimed that Her was right in not talking to detective Pineda because he believed the detective would have pressed Her until he got the information he wanted to hear, whether or not it was the truth. Carlos then attempted to invalidate the alleged victim’s testimony by pointing out that she had had difficulty answering even easy questions and that almost every question had to be repeated. He argued that if she were telling the truth, it shouldn’t have been that difficult.
As to the phone call when the alleged victim called Her the morning after the incident and told him he raped her, the defense attorney claimed that Her only said “Fine, I’ll tell you what you want to hear. I put my penis in your vagina,” because he did not know what else to do or how to respond to her claim.
Carlos also brought up that YX never said no, and then proceeded to list examples of cases where girls have falsely accused men of rape. Zambor objected to this, but the judge overruled the objection. Then, Carlos brought up the swab of the panty liner that was used as evidence and said that only 1-5 sperm cells were found which is not consistent with semen, but is consistent with pre-ejaculation.
Lastly, Carlos instructed the jury by saying that if they believe there was some fooling around that occurred, to vote for the lesser charges, but that the incident was not a rape.
Continuing with her closing argument, Zambor argued that Dr. Siggins’ definition of a sexual deviant involved violating someone’s rights through sexual aggression. Zambor argued that this definition is not relevant because it refers to incidents involving aggression, which this did not. She argued that Dr. Siggins did not address incidents such as date rape, which do not involve aggression.
Zambor also responded to accusations that the alleged victim took a story-telling class, by clarifying that she took an autobiographical, self-reflective class.
Zambor was visibly heated when she stated that it was offensive for the defense attorney to say that YX didn’t say no. According to Zambor, that point is ludicrous because it essentially says that if she was passed out drunk, it automatically gives him permission to have his way with her since she was unable to say no.
Zambor claimed that Her first denied any fooling around, even consensually, and only changed his story once the DNA sample showed evidence of sperm cells on the alleged victim’s panty liner. Then, Zambor explained to the jury, it became unreasonable for Her to say that they were both half naked from the waist down with him on top of her but that his penis never touched her vagina and only maybe grazed it.
Lastly, Zambor displayed a series of text messages to the jury in which Her said to the alleged victim, “Please YX, don’t let this define me, I will do anything you want,” and “Please give me a second chance. YX I’m begging you to remember. I am willing to do anything.”
Judge Richards instructed the jury that they could decide to pick up deliberations in a week, when one of the jurors was able to return, but the jury went ahead and began deliberating right away with an alternate juror.
Evidence Portion of the Trial Wraps Up
The trial of Lang Her came to a close on the afternoon of May 19, 2015, at the Yolo County Superior Courthouse with the testimony of defendant, Mr. Lang Her. Defense counsel, Christopher J. Carlos, called Mr. Her as a final witness for the defense.
According to Mr. Her, sexual intercourse did not take place between himself and YX. He informed the court, in response to Mr. Carlos’ line of questioning, that he has never penetrated the alleged victim digitally or with his genitalia. Mr. Her denied any sexual misconduct on his part, however, these statements did not match up with those made during the pretext phone call between himself and YX. This discrepancy was explored by Deputy District Attorney Amanda Zambor during cross-examination. “Why did you tell YX that you stuck your penis inside of her?” “I told her what she wanted to hear,” Mr. Her stated in response. Mr. Her insisted that he told the alleged victim that he sexually penetrated her because he wanted to appease her and move on with his day. “She really wanted a confession and wouldn’t let me start my day if I didn’t tell her what she wanted to hear.” Ms. Zambor felt that Mr. Her’s explanations defied logic. “Why did you confess to sexual assault?” Ms. Zambor pressed. Mr. Her told the court that he prefaced his earlier statement with, “according to you.”
Mr. Her, during his testimony, also stated that YX had kissed him, but that he was afraid to admit any sexual contact to law enforcement due to the sexual assault allegations. “I’ve never been accused with something like this before; I didn’t know what to do.” Mr. Her was concerned that the disclosure would equate to a confession of sexual assault.
The defendant did admit that he sent text messages to YX after signing a document with U.C. Davis stating that he would cease contact with her. Mr. Her called the texts “acts of desperation.” He told YX that he would do anything to remain enrolled in school and out of jail. The act of sending the text messages, with the aforementioned document in place, caused Mr. Her to be removed from school.
The evidence portion of the trial came to a close and closing arguments were set to begin on the morning of May 20, 2015. Jury deliberations were to be recessed for a week due to a juror’s scheduling conflict.
“Carlos then attempted to invalidate the alleged victim’s testimony by pointing out that she had had difficulty answering even easy questions and that almost every question had to be repeated. He argued that if she were telling the truth, it shouldn’t have been that difficult.”
I do not find this assertion credible. Unless one has been in this position, one has no way of knowing how incredibly difficult it is for young women to discuss the issue of sexual molestation of any kind, let alone rape. Many years ago, I was in a such a position for a sexually charged situation which was clearly inappropriate but fell far short of rape consisting only of inappropriate graphic sexual joke telling ( involving me) in an operating room where there was no room for me to physically distance myself from the perpetrator. Even this degree of sexual harassment was so difficult for me to convey in the form of direct answers to direct questions that the investigating chair of the department eventually suggested that I tell my story in his absence from the room to a woman from the hospital employee relations department in a recording which he subsequently reviewed with her. This was the only way that I was able to get my story out in a completely honest and complete fashion because of my embarrassment, my ambiguous feelings about telling at all since I knew that if I did tell the story, the perpetrators career might be affected, but it I did not, he might continue with these egregious behaviors subjecting years of women under him to these behaviors. It is a terrible position to be in and can certainly lead to being inarticulate which is not synonymous with dishonest.
Agree.
“The act of sending the text messages, with the aforementioned document in place, caused Mr. Her to be removed from school.”
It would seem to me that this is a situation in which Mr. Her has already experienced a great deal of punishment. His academic career has been severely altered. Hopefully he will have learned vital life time lessons about what is and what is not appropriate sexual interaction and that sex is a two person consent based activity and should not ever be anything else. Hopefully he will have also learned that once an order is in effect, such as no contact, that is the law and has to be followed no matter how “desperate” one is feeling, which I am sure is true.
However, other than revenge, and complete exoneration for activities in which she chose to engage ( binge drinking), I do not see any value in pushing for the incarceration of this young man. Hopefully what both will have learned is a great deal about the costs of not considering the potential devastating consequences of thoughtless action for momentary pleasure.
the problem here comes down to where you draw the line between two people drunk and using bad judgment and committing a crime. i very have been supportive of taking acquaintance rape claims seriously, but at some point you get into very murky areas. 8-4 is really reasonable doubt by another name.
I wonder if Mr. Her will now be able to return to school. If YX has now graduated, that should be allowed.
that part i don’t agree with – he was ordered to stay away and failed to adhere to that. that is a separate issue from whether he committed the crime.
So he is sentenced to never complete his education?
i guess he can apply to be reinstated just as anyone kicked out of school would be.
DP
I agree with your statement but wonder if it is not excessively punitive to ruin a young man’s career for electronically contacting someone against a court order. I think that a lesser consequence might be in better alignment with the infraction.
It was a hung jury, there is physical evidence & Dr. testimony she was analy raped; he shouldn’t be allowed back into any of the UCD campuses, imho. It sends the wrong message to students re: binge drinking & consequences.
Given that people are innocent until proven guilty – her testimony was disbelieved by 8 of the 12 jurors.
Actually, people are either guilty or they are not; “until” is not relevant to reality. Because of the difficulty of establishing”proof,” not to mention generations of power-mongering and corruption by rulers, our legal system places the burden on the prosecution, thus the legal “presumption of innocence,” a different thing than actual innocence. Oink!
Will a retrial be allowed, or is that double jeopardy?
hung juries can be retried. given the split and the trauma the first trial put the victim through – i don’t think they will retry it.
Correct me if I’m wrong… isn’t a ‘hung jury’ technically a ‘mis-trial’ and therefore “didn’t happen”?
Sorry didn’t think of this before I posted before… with a ‘hung jury’, and if the case is not re-tried, does Mr Her have to disclose the accusation? Honestly curious. [context is employment applications/background checks]
Anyone interested in aquaintance rape, it’s prevelence and its impact on the victims should read ‘Missoula’ by Jon Krakauer. The book systematically details the many myths surrounding rape and the ways our society mistreats rape victims. Eighty five percent of rapes are committed by assailants who are aquanted in some way with their victims and only a small percentage of these non-stranger rapes result in successful prosecution of the rapist.
A study by David Lisak of 1882 male students at the University of Massachutess at Boston found 6.4 % were identified as rapists but 4% were repeat offenders collectively responsible for 439 rapes or an average of 6 assaults per rapist. These same individuals were responsible for 49 assaults that didn’t rise to the level of rape, 277 acts of sexual abuse of children, 66 acts of physical abuse against children and 214 acts of battery against intimate partners. A study of naval recruits who had never been convicted of sexual assault had similar results. Subjects in both studies participated voluntarily and none of them considered themselves rapists. They were told “childhood experiences and adult functioning” and the questionnaires they completed used explicit descriptions of rape and sexual assault but did not use the words rape or assults. These guys self reported their behavior and because they get away with it, they do not think of themselves as rapists.
I, too, have problems with the excess drinking (what are they thinking?) but it seems to be the new normal and when you are with people you believe to be your friends, I guess you do not think they will rape you anymore than you think they will rob or murder or assault you non-sexually.
women who experience aquaintance rape suffer PTSD rates 50% higher than soldiers returning from war.
The PTSD is where the courts fail in prosecuting cases. The Victims never get the Justice they need, and the Legal System, helped by people who believe a criminal has been rehabilitated or punished enough by the system, often leaves the victim a target for another assault, or another victim in another jurisdiction.