2011 UT 24
Filed May 6, 2011
The Utah Supreme Court held that it was ineffective assistance of counsel for Mr. Lenkart’s attorney to fail to analyze and present the physical evidence in a rape kit when that evidence could have changed the outcome of the trial.
Mr. Lenkart hosted a party at his apartment at which the victim, Ms. K.H., was a guest. Both Mr. Lenkart and K.H. drank alcohol at the party. The party later moved to a local bar. When the bar closed, K.H. and her boyfriend returned with Mr. Lenkart to his apartment. K.H. and her boyfriend fell asleep on Mr. Lenkart’s bed, so Mr. Lenkart slept on the futon in his living room. Mr. Lenkart’s and K.H.’s accounts of the rest of the night’s events differ sharply. K.H. asserts that she woke in the middle of the night to find herself on the futon with someone, she assumed it was her boyfriend, touching her sexually. She told him to stop, then passed out. She woke the second time to find someone performing oral sex on her. Again she told him to stop and then passed out. She woke a third time to someone, who she now recognized as Mr. Lenkart, having intercourse with her. K.H. retrieved her clothes and fled to a friend’s apartment where she called the police. According to Mr. Lenkart’s version of the story, he was awakened by a noise in the middle of the night and saw K.H. coming out of the bathroom. She got onto the futon and curled up next to him. The two began kissing and Mr. Lenkart testified that K.H. gave him every indication that she wanted to have sex. During intercourse, he heard a sniffling sound and guessed that she had changed her mind. He immediately withdrew. K.H. got dressed and left the house. According to Mr. Lenkart, he never performed oral sex on K.H.
K.H. was taken to LDS Hospital, where a “Code R” examination was conducted and physical evidence was collected and preserved in a Code R kit. Mr. Lenkart was arrested and charged with rape, two counts of forcible sexual abuse, and forcible sodomy for the oral sex.
Mr. Lenkart hired a private attorney to represent him. He asked his attorney to have the physical evidence in the Code R kit analyzed, but no analysis was done. At trial, the nurse from LDS Hospital testified that, in her opinion, K.H.’s injuries were consistent with rape. On cross examination she conceded that there was a possibility that the injuries could have been the result of consensual sex. Mr. Lenkart’s attorney did not call any expert witnesses to testify about the results of the Code R exam or the physical evidence. All of the other testimony presented was a contest of “he-said-she-said.” The jury believed K.H.’s version of the story and Mr. Lenkart was convicted on all charges. Mr. Lenkart moved for a new trial, arguing that his attorney was ineffective because he had not had the evidence in the Code R kit analyzed. The motion was denied and Mr. Lenkart appealed to the Utah Supreme Court.
Mr. Lenkart hired a new attorney to represent him in the appeal. The new attorney had the Code R kit analyzed and obtained the opinion of a well respected forensic nurse. The forensic nurse concluded that K.H.’s injuries were more consistent with consensual sex than with rape. Also, the Code R kit contained no evidence of saliva, which would have been present if Mr. Lenkart had performed oral sex.
The Supreme Court held that Mr. Lenkart’s trial counsel was ineffective for failing to have the physical evidence examined and ruled that Mr. Lenkart should have a new trial.
In order to show that a trial attorney was ineffective, a defendant must prove (1) that the attorney’s performance was deficient, and (2) that the attorney’s failures prejudiced the outcome of the case.
To show that the attorney’s performance was deficient, the defendant must show that the representation fell below “an objective standard of reasonableness” as established by the “prevailing professional norms.” The Supreme Court held that Mr. Lenkart’s attorney had an indispensable duty to investigate the underlying facts of the case, which included the physical evidence in the Code R kit. Mr. Lenkart’s trial attorney also should have called expert witnesses to contradict the testimony of the examining nurse. Without these actions, the jury was presented with a lopsided picture of the evidence.
The Supreme Court also held that the deficient representation prejudiced the outcome of Mr. Lenkart’s trial. Because there was no saliva found in the Code R kit, the jury may have believed Mr. Lenkart’s assertion that there was no oral sex and thus not convicted him of sodomy. This evidence, together with testimony from an expert who believed K.H.’s injuries were more consistent with consensual sex, may have increased Mr. Lenkart’s credibility. Where much of the testimony was a contest between his version of the story and hers, this could reasonably have changed the outcome of the trial.
