'Frimpong Didn't Do It'

I'd like to introduce you to James T. Clemente. Mr. Clemente has undergraduate degrees in Chemistry and Philosophy and a Juris Doctor from Fordham University School of Law.

He began his career as an ADA in Bronx County New York where he eventually headed the Child Sex Crimes Prosecution Team

His work as an undercover agent specializing in youthful sex offenders was so impressive that it caught the eye of the FBI, who recruited him to serve on the New York Field Division's Joint FBI/NYPD Bank Robbery/Sexual Exploitation of Children Task Force.

In 1998 he was promoted to Supervisory Special Agent and assigned to the Behavioral Analysis Unit in Quantico, VA where he worked on cases involving Serial Murder, Serial Rape, Homicide, Equivocal Death, Sex Crimes, and Violent Crimes until his retirement.

The reason for his retirement was that he was diagnosed with lymphoma which he contracted because of toxic chemicals he inhaled as a first responder on 9/11.

I'll give you a second.

When he learned of his diagnosis, he pledged the balance of his years to the cause of what you might call the righting of wrongs. He still finds time to serve as the technical adviser to the TV show Criminal Minds (for which he has written three episodes) but his great passion is helping free innocent people.

As such, he heard of the Eric Frimpong case and took it upon himself to look into it.

He traveled, at his own expense, to Eloy Arizona and interviewed Eric Frimpong for 14 hours over 3 days. Wen he was done, he agreed to take up Eric's case and subsequently filed an affidavit which serves as the basis for the Habeus filing which Judge Brian Hill recently said has no merit.

I've just received permission to share said affidavit and, after redacting the accusers' name - I'm not certain that I had to at this point but I don't want to wait to hear back from the lawyers - be prepared to say goodbye to any remaining doubts about whether Frimpong got a fair trial.

I, JAMES T. CLEMENTE, declare:

I am a retired Supervisory Special Agent with 22 years of service in the Federal Bureau of Investigation (FBI). I am a nationally recognized expert in the field of sex crimes investigation and analysis. I have given related sworn expert testimony in local, state and federal criminal courts, as well as, in civil cases since retirement from the FBI. I have investigated, analyzed, researched, studied and consulted on thousands of sex crimes over the past twenty-five years. Prior to my service with the FBI, I was a Prosecutor for the New York City Law Department, specializing in sex crimes prosecutions of youthful offenders. I have received specialized training in sex crimes investigations and have taught law enforcement officers, psychologists, prosecutors, defense attorneys, health care professionals, undergraduate and graduate students across the United States and around the world on related subjects. I am currently employed as an expert by both Park Dietz and Associates, of Newport Beach, CA, and The Academy Group Inc., of Reston, VA.

I am providing this declaration in People v. Eric Frimpong as a pro bono expert witness. I was not paid for the hundreds of hours of my time spent investigating Mr. Frimpong’s case, and I am not receiving any remuneration for creating or providing this declaration. I became aware of this case when I read an article about Mr. Frimpong and contacted his legal team to offer assistance in the analysis of the case. My offer of assistance was predicated on unfettered access to case materials, transcripts, recordings, and witnesses, including Mr. Frimpong. I also made it very clear that my professional opinions would be based solely on my honest and thorough efforts to determine the truth of the situation involved and, in the end, they may or may not help Mr. Frimpong.

I am now providing this declaration because after my investigation of the case I have concluded (1) that Eric Frimpong did not rape (Jane Doe) on the beach in Isla Vista or anywhere else for that matter, on the morning of February 17, 2007, or any other time and (2) that regardless of whether Eric Frimpong is actually innocent, he received such ineffective assistance of counsel at his trial, and his defense was so unfairly undermined by prosecutorial and investigative misconduct before and during his trial, that his conviction of rape should be vacated.

It should be noted that nothing in this declaration is intended to suggest or imply that the use of alcohol by offenders or victims of sex crimes either excuses sexually aggressive offending behavior or makes the victims culpable for their own victimization. However, in the instant case, there are serious issues of credibility that may be directly related to excessive alcohol consumption. “While the law in most jurisdictions is clear that rape has occurred if the woman is incapable of giving consent as a result of intoxication, questions frequently arise about whether a victim under the influence of alcohol or drugs has truly been raped or instead is a victim of consensual but ‘regretted’ sex.” (Campus Sexual Assault Response Teams: Program Development and Operational Management, Civic Research Institute (2009), Donna Barry and Paul Cell, quoting Schwartz and Leggett, 1999.)

I have reviewed various documents and audio recordings in the case of People v. Eric Frimpong, including significant portions of the trial transcript and of the discovery provided by the Santa Barbara County District Attorney’s Office to Mr. Frimpong’s defense counsel. I have closely read and listened to, in particular, all of the pre-trial statements of (Jane Doe), the accusing witness, as well as all of Ms. (Jane Doe)’s trial testimony. I have also made two on-site investigative visits to the alleged crime scene on the beach in Isla Vista and its surrounding area. I have also read and listened to the pre-trial statement of Eric Frimpong, and in May 2010 I conducted in-person interviews of Mr. Frimpong totaling about fourteen hours over the course of three days. At the time, Mr. Frimpong was incarcerated at the La Palma Correctional Center in Eloy, Arizona. In addition, I have studied the statements and testimony given by Morgan Menzies regarding an alleged sexual assault by Mr. Frimpong, for which the jury acquitted Mr. Frimpong. I have also reviewed lay and expert witness declarations signed under penalty of perjury obtained by post-conviction counsel for Mr. Frimpong.

Due to the sensitivity and complexity of sexual assault investigations, protocols have been established, taught, and implemented in law enforcement agencies across the nation regarding the investigation of such allegations. Proper implementation of these investigative protocols helps to ensure thorough and accurate collection of information and evidence in these cases, avoid contamination of witness statements, preserve critical evidence, and identify potential false allegations. In the instant case, investigators failed to follow even the most basic of investigative protocols, they contaminated witness interviews, they failed to document and preserve evidence and they missed multiple glaring indicators of false allegations.

Studies have shown that a percentage of rape allegations (between 8% and 45%) are found after investigation to be false or unsubstantiated. As early as 1979, false allegations of rape have been defined as a “deliberate lie by the alleged victim accusing a man of a rape that did not occur. It may also be a fantasy report that the female believes is true.” (Understanding the Rape Victim, Wiley & Sons (1979), Katz, S. and Mazur, M., p. 207.) In 1987, this definition was expanded to include the motivational roles of defense mechanisms, secondary gain, and other psychological aspects. (False Allegations (1987), McDowell, C. and Hibler, N.; Practical Aspects of Rape Investigations: A Multidisciplinary Approach, 1st Ed., CRC Press (2001), Hazelwood, R. and Burgess, A.) Whatever the circumstances and/or motivations, false allegations of rape have been studied extensively resulting in a number of indicators that sex crimes investigators are trained to look for in an effort to determine the veracity of sex crimes allegations.

As a result of my investigation of the facts in Mr. Frimpong’s case, I have formed the following professional opinions related to this case, which I summarize here and will explain in detail following this summary.


The entire investigation conducted by Detective Kies, Sergeant Ruth, Detective Scherbarth, and Deputy Rivlin of the Santa Barbara Sheriff’s Department, into the allegation of rape made by (Jane Doe) was woefully inadequate, it was severely limited in scope, it produced contaminated evidence and testimony, it was racially biased, and it was not based on any recognized sex crimes investigative procedural guidelines. Detective Kies in particular ignored or was completely unaware of multiple indicators typically found in false allegation of rape cases.

In addition, the investigators made no attempt, prior to arresting Mr. Frimpong, to verify the details of his alibi that he was with Krystal Giang and several other people during the time period in which (Jane Doe) was assaulted and was allegedly raped. Furthermore, when Detective Kies did finally contact Krystal Giang to discuss Mr. Frimpong’s alibi for that morning of February 17, 2007, the Detective continued his pattern of violating established police investigative procedure by conducting this critically important interview by telephone and by telling Ms. Giang that she was wrong about her recollection of events then attempting to cajole Ms. Giang into changing her statement. Detective Kies’ combative interrogation of Mr. Frimpong’s alibi witness would later lead to a remarkable distortion of the true facts regarding Mr. Frimpong’s alibi, as indicated in Ms. Giang’s Declaration of July 14, 2010. (See, Declaration of Krystal Giang ¶¶ 10-14.)

Detective Kies similarly ignored multiple indicators of a false allegation of sexual assault with respect to Ms. (Sally Smith). A competent investigation of Ms. Smith’s claim of sexual assault would have shown it to be fabricated, not to mention that anyone making an objective assessment of what Ms. Smith claimed happened to her, as did the jurors in this case, would conclude that even if the claims were believed to be true, the claims themselves did not rise to the level of a crime of sexual assault against Ms. Smith.


The prosecutorial interview Santa Barbara County ADA Mary Barron conducted of (Jane Doe) on April 11, 2007, was thoroughly contaminated. As a witness, Ms. Doe was contaminated first by Deputy Rivlin in his interview of Ms. Doe conducted at the hospital, then by Detective Kies in his interview of Ms. Doe conducted in her dorm room, and then by ADA Barron herself. ADA Barron abused her prosecutorial discretion in bringing a criminal case for rape against Eric Frimpong based on the April 11, 2007 interview. ADA Barron then acted unethically as an officer of the court when she called (Jane Doe) to the stand at trial and allowed her to testify about events that she clearly had no memory of, based on Ms. Doe’s previous statements made to the police and/or to ADA Barron herself, or that she belatedly manufactured memories of, which ADA Barron knew to be manufactured memories. Presenting such testimony, without qualification by ADA Barron, was tantamount to suborning perjury.

ADA Barron also abused her prosecutorial discretion in bringing a criminal charge of sexual assault against Mr. Frimpong based on the statement by (Sally Smith), and in joining that charge as Count 2 of the case against Mr. Frimpong, when it was obvious that ADA Barron had no basis to obtain a conviction for sexual assault against Mr. Frimpong based on the facts alleged by Ms. Smith, and so the jury found. ADA Barron clearly brought this second criminal charge against Mr. Frimpong only to sully his reputation and to be able to unfairly argue that Mr. Frimpong was a serial sexual predator.

Dr. Gregory Golden testified as a prosecution bite mark expert at the hearing on the motion for new trial. He presented a photograph of the bite mark on Ms. Doe’s cheek (People’s Exhibit 52) that he testified he had personally enlarged by 28% to account for “shrinkage” of the bite mark. Dr. Golden either lied regarding the above testimony, or he lied when he stated at an American Society of Forensic Odontologists (ASFO) conference in February 2009 that the enlarged photograph was produced by the prosecutor’s office, and that it was not his practice to enlarge a bite mark in this way.

Dr. Golden further stated that he presented the enlarged photograph and his analysis that it supported a finding that Petitioner’s teeth “fit” the bite mark because ADA Barron pressured him to do so. He stated, “Had I been operating by myself in the real world, there is absolutely no way I would have done that.” (Audio Recording of Panel Presentation on Frimpong Case at February 2009 ASFO Conference, at minute 63 of the audio recording.)

Dr. Golden’s recorded statements in February 2009 contradict his testimony that he created the enlarged photograph of the bite mark, and that he believed the comparison he made of Mr. Frimpong’s teeth to the enlarged photograph was scientifically valid. Given Dr. Golden’s new remarks that contradict his testimony, he should be called as a witness at a new evidentiary hearing, and if he admits that he testified falsely at the hearing on the motion for new trial, this also means that ADA Barron committed prosecutorial misconduct by proffering testimony she knew to be false, and/or she suborned perjury, because she knew that she had caused the enlarged photograph to be made, and not Dr. Golden, and she knew that Dr. Golden had strong reservations about the validity of his testimony, which she did not disclose.


The initial statements made by (Jane Doe) were replete with indicators of deception, they had many of the markers found in false allegations of rape, they were internally inconsistent, and they contained implausible assertions and assumptions about where and how the alleged rape occurred. Ms. Doe’s statements to ADA Barron on April 11, 2007, only added more indications of a false accusation.

In addition, the trial testimony of (Jane Doe) directly contradicted earlier statements she had given to police and/or to ADA Barron.


The initial statements made by Eric Frimpong to the police, in which he denied being on the beach with Ms. Doe or assaulting or raping her, contained many indicators of veracity and no inculpatory information. In addition, Mr. Frimpong consented, despite having been arrested on a charge of rape, to a search of his house and to the seizure of his clothing at his house, and he further consented to the SART nurse immediately conducting a complete and invasive suspect SART examination of his own person.

The statements made by Mr. Frimpong to me during fourteen hours of intense and comprehensive questioning, in which he continued to deny assaulting or raping Ms. Doe, are filled with indicators of veracity.


Defendant’s trial counsel, Robert Sanger, failed to adequately defend Mr. Frimpong in numerous respects, including:

(1) Mr. Sanger failed to move to dismiss or sever Count 2, alleging that Mr. Frimpong sexually assaulted (Sally Smith), where the proof of any crime in that alleged incident was clearly lacking, and the weather charts for the night of January 27-28, 2007, substantially undermine the allegations that were made, but the presence of Count 2 allowed the prosecution to unfairly argue that Mr. Frimpong was a serial sexual predator.

(2) Mr. Sanger failed to competently present the defense that Benjamin Randall was the person who actually assaulted Ms. Doe. (See, December 21, 2007 report of odontological expert Dr. C. Michael Bowers and July 14, 2009 report of odontological expert Dr. Raymond Johansen, both of which exclude Mr. Frimpong as the person who inflicted the bite on Ms. Doe’s cheek, and include Mr. Randall as the possible biter.)

(3) Mr. Sanger failed to consult his DNA expert or any criminalist to rebut the prosecution’s argument that the sperm belonging to Benjamin Randall found on Ms. Doe’s underwear was not deposited on the night of her assault but four days before her alleged rape. ADA Barron argued that the underwear had been washed since Mr. Randall and Ms. Doe had sexual intercourse on February 13, 2007, based on negative acid phosphatase and p30 protein tests, and therefore the sperm found in Ms. Doe’s underwear had been deposited on February 13, 2007.

Had Mr. Sanger consulted a competent criminalist regarding this argument, he would have learned that the high concentration of sperm DOJ criminalist Dianne Burns found on Ms. Doe’s underwear is inconsistent with any supposition that the underwear had been laundered. He would have been able to establish that there is no other reasonable explanation for Mr. Randall’s sperm being on Ms. Doe’s underwear than that the sperm was deposited on them on the night of February 16-17, 2007. (See, Declaration of Elaine Pagliaro, M.S., J.D., ¶¶ 23-24.) Had Mr. Sanger established this fact, he would have impeached both Ms. Doe’s and Mr. Randall’s testimony that they did not have any sexual contact on the night Ms. Doe was assaulted. This would have put the case against Mr. Frimpong in an entirely new light.

(4) Similarly, Mr. Sanger failed to rebut speculative testimony ADA Barron elicited at trial in an attempt to explain away the fact that no sperm or seminal fluid from Mr. Frimpong was found anywhere on Ms. Doe’s body or her clothing. DOJ Criminalist Dianne Burns offered reasons why there might not be any sperm found in a rape case, including that there might not have been ejaculation. Mr. Sanger failed to present rebuttal testimony of the fact, known to any experienced investigator of sexual assault cases, that sperm, seminal fluid, or saliva from the perpetrator is in fact frequently located in rape investigations, and not finding such evidence is the exception not the rule. “A significant amount of sexual assault evidence is body fluid in nature. Blood, saliva, vaginal mucus, semen and other body fluids may be involved.” (Practical Aspects of Rape Investigation: A Multi-disciplinary Approach, 3rd Edition, Hazelwood and Burgess, pp. 276 and 321.)

(5) Mr. Sanger then failed to object when ADA Barron stated in her closing argument, “most of the times [sic] in sexual assault cases there’s not ejaculation.” (8 RT 1952.) ADA Barron stated this in the context of arguing that the absence of semen, sperm, saliva, sweat or epithelial cells or any other evidence containing DNA from Mr. Frimpong on Ms. Doe’s body or clothing was not significant. In fact, “the type of physical evidence most frequently associated with sexual assault investigations is semen.” (Practical Aspects of Rape Investigation: A Multi-disciplinary Approach, 3rd Edition, Hazelwood and Burgess, p. 321.) ADA Barron’s statement went well beyond the evidentiary record developed at trial, in addition to being objectively incorrect. Mr. Sanger should have objected to the statement and asked for a mistrial because of ADA Barron’s misconduct in making such an unsupported statement aimed at undermining the significance of a critical exculpatory fact in the case.

(6) Mr. Sanger apparently never visited the alleged crime scene, and he either did not review the Santa Barbara tide charts for February 17, 2007, or he did not understand their significance, so he was not prepared to challenge, as he should have, the assertion that the beach between the El Embarcadero beach access and the Camino Pescadero staircase was passable by Ms. Doe without getting wet from ocean waves after midnight on February 17, 2007. If the beach was not passable by Ms. Doe without getting wet, she could not have gone down to the beach using the El Embarcadero beach access near Mr. Frimpong’s house, and come up from the beach using the Camino Pescadero stairway near the apartment complex at 6613-6619 Del Playa Drive, because when Justin Hannah encountered her in the parking lot of the apartment complex, her clothes were not wet. (See, trial testimony of Justin Hannah and Declaration of Justin Hannah.)

(7) Mr. Sanger failed to have the “dirt” on the back of the black jacket Ms. Doe was wearing when she was assaulted tested for its composition to determine if it could have come from anywhere on the beach, and he failed to have a soils expert examine the black jacket to support the defense that Ms. Doe was not in fact assaulted on the beach. Had he done so, he could have presented expert testimony that the dirt smudged on the back of Ms. Doe’s jacket could not have come from anywhere on the beach. (See, Declaration of Dr. Oliver Chadwick.) If Ms. Doe were not assaulted on the beach, but elsewhere, the credibility of her entire account would have been gravely called into question.

(8) Mr. Sanger failed to identify a significant number of the inconsistencies between the statements Ms. Doe initially made to the police, and those she later made to ADA Barron, and her trial testimony, as well as failing to present expert testimony to support the defense that Ms. Doe suffered an alcohol-induced blackout after she left Mr. Frimpong’s house, rendering her memory of what happened to her after that completely unreliable. (See, Declaration of Dr. Kim Fromme.)

(9) Mr. Sanger failed to challenge that Ms. Doe was raped at all, but instead conceded this, as well as conceding that Ms. Doe was assaulted on the beach. Mr. Sanger failed to challenge Ms. Doe on many specific points in her testimony, the cumulative effect of which would have been to seriously impeach her credibility.

(10) Mr. Sanger failed to challenge the admissibility of testimony that Ms. Doe on February 17, 2007, identified the voice of Mr. Frimpong as the voice of the person who attacked her, based on her listening to a five-second audio clip of Detective Kies’ interview of Mr. Frimpong conducted earlier that day. The voice identification procedure used by Detective Kies was suggestive and prejudicial. Mr. Sanger also failed to challenge this voice identification as unreliable, based on the minimal exposure Ms. Doe had to the voice of Mr. Frimpong, and the minimal exposure she also had to the voice of her attacker (according to her own account). (See, Declaration of Dr. Natalie Schilling, Ph.D.)

(11) Mr. Sanger failed to challenge the admissibility of testimony that Ms. Doe on February 17, 2007, identified a photograph of Mr. Frimpong as her assailant, where the photo lineup was unduly suggestive because Mr. Frimpong is the only person in the photo array shown wearing a distinctive necklace, and Mr. Frimpong had been wearing that same necklace on February 16, 2007, when he met Ms. Doe.

(12) Mr. Sanger failed to challenge the admissibility of People’s Exhibit 79, Mr. Frimpong’s jeans, though the police had not properly documented their assertion that the jeans were cuffed, with sand in the cuffs, before they were seized.

(13) Mr. Sanger also failed to effectively challenge whether Mr. Frimpong ever wore these jeans with cuffs at all. Mr. Sanger in addition failed to challenge the significance of sand being on Mr. Frimpong’s jeans, which he could have done by presenting evidence that Mr. Frimpong was on the beach with friends playing volleyball on the afternoon of February 16, 2007, while he was wearing these same jeans.

(14) Mr. Sanger failed to competently interview his client before trial or during the trial, and he incompetently failed to call Mr. Frimpong as a witness on his own behalf, where he was the only witness who could provide the evidentiary support for the assertions that Mr. Sanger made in opening argument that Ms. Doe and Mr. Frimpong engaged in kissing and petting after the beer pong game, but Ms. Doe then left with Benjamin Randall. Testimony by Mr. Frimpong would have provided an alternate explanation other than rape for the presence of epithelial cells from Ms. Doe on Mr. Frimpong’s body. Mr. Frimpong could also have testified to his fears of darkness and of the ocean, that he did not know how to swim, and that he did not go down to the beach except when accompanied by a group of friends that he trusted, testimony that Mr. Sanger could have corroborated through calling Mr. Frimpong’s roommates and others as defense witnesses. Such testimony would have challenged Ms. Doe’s claim that Mr. Frimpong suggested they walk down to the beach late at night, by themselves.

(15) Mr. Sanger failed to properly elicit alibi testimony from Krystal Giang, who was prepared to testify at the Preliminary Hearing that she definitely saw Mr. Frimpong at 12:15 a.m. on February 17, 2007, outside her apartment, and he was with her thereafter until around 3:00 a.m. (See, Declaration of Krystal Giang, ¶¶ 1, 15-23.) He failed to call as an alibi witness at trial Matthew Connolly, who was interviewed by Mr. Sanger’s assistant and who told the assistant that he was prepared to testify that he saw and spoke with Mr. Frimpong on the street in Isla Vista around 12:15 a.m. on February 17, 2007. (See, Declaration of Matthew Connolly.) He failed to identify or call as witnesses any of several additional alibi witnesses whose existence and identities he could easily have ascertained before trial, who corroborate Ms. Giang and Mr. Connolly. (See, Declaration of Kian Abedini.) Giang, Connolly and Abedini establish that Mr. Frimpong could not have been on the beach with Ms. Doe at 12:15 a.m. or thereafter, as she testified.

(16) Mr. Sanger failed to call available character witnesses to rebut the prosecution’s claim that Mr. Frimpong was a serial sexual predator, and to establish that Mr. Frimpong had a well-established reputation as a nonviolent person in the local community. (See, Declarations of Loni Monahan, and Paul R. Monahan III.) This is particularly relevant in light of the fact that a 2003 study of the characteristics of perpetrators of alcohol-involved sexual assaults typically include “a history of delinquency, aggressive and dominant personality traits, greater sexual dominance, stronger attitudes supporting violence against women, and more frequent misperception of women’s friendliness as sexual interest.” (Zawacki, et al. Perpetrators of Alcohol-involved Sexual Assaults, Aggressive Behavior, Canadian Journal of Human Sexuality (2003), 29(4), pp. 366-380.) Mr. Frimpong exhibited none of these characteristics, according to Loni Monahan, Paul Monahan, and Krystal Giang. (See, Declarations of Loni Monahan, Paul Monahan, and Krystal Giang.) To the contrary, all of Mr. Frimpong’s roommates asserted to Detective Kies that he was “always just like the most friendly guy around.” (Detective Kies Interview with Mr. Frimpong’s Roommates and Others, February 23, 2007, Discovery pp. 701-751, at p. 714.)

(17) Mr. Sanger failed to insist that the prosecution obtain and provide to the defense Ms. Doe’s juvenile DUI arrest report and probation documentation to establish whether Ms. Doe in fact violated on February 16, 2007, her probation condition that she not drink alcohol. He also failed to obtain this documentation on his own, though juvenile DUI records are public records under the California Vehicle Code. If the DUI documentation confirmed Ms. Doe violated her probation by drinking alcohol, Mr. Sanger should have challenged Ms. Doe’s credibility on the ground that the prosecution had provided her a legal benefit by not reporting or prosecuting her violation of probation.

(18) Mr. Sanger failed to challenge the accuracy of the transcription provided by the prosecution of Detective Kies’ interview of Mr. Frimpong on February 17, 2007. This transcript, submitted into evidence at trial, contains at least 165 lines of errors, omissions and misquotes. Several of these omissions appear to be deliberate, as they are clearly audible on the recording, yet they are not transcribed. It is entirely possible that they were omitted in an attempt to cover up the racially biased nature of comments and actions by Detective Kies. Mr. Sanger should have submitted a corrected version of the transcript to the trial court and asked that the court order the transcript corrected before the trial began.

(19) Mr. Sanger failed to challenge Mr. Frimpong’s arrest as being made without probable cause, and failed to move to suppress the evidence derived from that illegal arrest, which included the evidence seized at Mr. Frimpong’s house on February 17, 2007, based solely on Mr. Frimpong’s consent, which was invalidly obtained, and the evidence obtained from the “suspect” SART examination of Mr. Frimpong, which was also based solely on Mr. Frimpong’s invalidly obtained consent. Detective Kies rushed into arresting Mr. Frimpong on February 17, 2007, without possessing valid probable cause to do so, given Ms. Doe’s faulty memory, her being intoxicated at the time of her alleged sexual assault, her inability to facially identify her alleged assailant, and the major inconsistencies in her statements made to police and others. He arrested Mr. Frimpong before he obtained voice and photo identifications of Mr. Frimpong from Ms. Doe, which themselves were tainted, and which in any case cannot retroactively make legal an illegal arrest.


Deputy Rivlin interviewed Ms. Doe at the Goleta Valley hospital around 3:00 a.m. on February 17, 2007. This was her initial law enforcement interview, and her statement is filled with indicators of deception. Deputy Rivlin asked, “Can you tell me what happened?” Ms. Doe replied, “Um, I met a guy and we’re hanging out. And everything was okay. We’re like—I like met his roommates and everything. We went on the beach and then he got, like aggressive, and threw me down and started to rape me. And then I started screaming. He hit me on this side, and kept going and then he got away, and then I just, I couldn’t like run after him or do anything. I just like laid there. And then I got up and called my friends.” (5 CT 1485.)

Ms. Doe’s use of the phrase, “…started to rape me” indicates that this act was never completed, because “started to” typically indicates an interruption in the activity that follows. This is demonstrated in her very next sentence, when she said, “…then I started to scream.” In this sentence, by using the phrase “started to” she is clearly indicating that she was not, in fact, able to scream. In my experience, actual rape victims typically state unequivocally that the assailant “raped” them. They do not say, “…he started to rape me.”

Ms. Doe further stated to Deputy Rivlin, “And he took off my underwear. And I had shoes on which I don’t know where they are. They’re probably on the beach still. And yeah, he took all those off, and that’s when he started trying to have sex with me.” Again, Ms. Doe’s use of the word “started” indicates an interruption in this act. She followed this up by adding the additional modifying phrase “trying to,” indicating that the assailant did not, in fact, accomplish this act. Then she used the phrase “have sex with me” rather than using the term “rape.” In my experience, rape victims do not typically describe the act of rape as “have sex” and they typically do not use the phrase “with me,” which indicates an act that was done together. Typically, rape victims use the phrase “to me,” which indicates an act that was done without their consent.

In an attempt to verify or refute my opinions regarding these initial statements made by Ms. Doe to Deputy Rivlin, I anonymously shared them with two of my colleagues, one who teaches Statement Analysis at the FBI Academy, in Quantico, Virginia, and the other a recognized expert in Statement Analysis at the FBI’s National Center for the Analysis of Violent Crime in Stafford, Virginia. I did not share anything with these colleagues other than the statements themselves. They knew only that they were the statements of a woman who reported she was raped. Both of these colleagues analyzed the statements and expressed their opinions that they indicated deception. One said these statements are very similar to the ones he uses in his class as an example of a false rape allegation. The other said the statements indicated to him that something happened, but that the person was not raped. This colleague added that based on the indicators of deception contained in these statements made by the complainant, no prosecutor would ever take this to trial.

Neither of these colleagues was aware that in addition to the indicators of deception in Ms. Doe’s initial police statement, at the time she claimed she was raped her blood-alcohol level was at .26 or higher, based on the analysis later conducted of the blood sample provided by Ms. Doe around 5:30 a.m. that morning. (8 RT 1910.) Nor were they aware of the fact that the victim herself reported gaps in her memory, she was reluctant to report to law enforcement, and there were other significant indicators of deception.

Two additional problems in Ms. Doe’s initial statement to Deputy Rivlin are her lack of knowledge of where the alleged rape took place, as well as the impossibility of it occurring where she did suggest it took place. After Ms. Doe’s sister Elizabeth Doe interjected in the interview that Patricia had gone to the alleged assailant’s house, Deputy Rivlin asked Ms. Doe, “Okay, do you know what the address was?” Ms. Doe responded, “Um, me—my—some of my girlfriends picked me up from there. So, they should probably know where it was.” (5 CT 1486.) It should be noted that the location from which her friends picked up Ms. Doe was 21 houses and more than 900 feet, or the length of three American football fields, or a little more than a sixth of a mile, away from Mr. Frimpong’s house.

Deputy Rivlin subsequently asked, “Do you know which—where you went down to the beach?” Ms. Doe responded, “All I know is—Okay….If we were like – like at the house [of the alleged assailant]....We went to the right.” Trying to clarify what direction Ms. Doe meant, Deputy Rivlin asked if this was “to the right” if she were facing the house. Ms. Doe responded, “Like towards the campus.” Deputy Rivlin emphasized, “Okay, towards campus,” and Ms. Doe responded again, “Towards campus, yeah.” Mr. Frimpong’s house was located at 6547 Del Playa Drive. Del Playa Drive runs parallel to the ocean on the bluff above the beach. There are beach access stairs located west of Mr. Frimpong’s house (i.e., away from the campus) where El Embarcadero runs into Del Playa, and then 724 feet (7 RT 1607) further west, where Camino Pescadero runs into Del Playa. Deputy Rivlin, understanding the geography of the area in terms of Ms. Doe’s response, then asked, “Um, so that would’ve been at Camino Pescadero?” Ms. Doereplied “Sure....I just know it’s towards campus.” (5 CT 1488-1489.)

To go toward the UC Santa Barbara campus from anywhere on Del Playa Drive, one has to go to the east. The university campus would be “to the right” if one were facing toward Del Playa Drive from Mr. Frimpong’s house (not facing toward Mr. Frimpong’s house, which was located on the beach side of Del Playa Drive). Whatever ambiguity there might have been when Ms. Doe said she went down to the beach “to the right” of the house, it is clear from her repeated statements that she was saying that she went “towards the campus” to get down to the beach. She was very clear then that she went east from “the house” to go down to the beach. But it is physically impossible to get to the beach from Mr. Frimpong’s house at 6547 Del Playa by going east towards the campus. There are no beach access points towards campus from Mr. Frimpong’s house. However, there is such a beach access staircase to the east of the apartments located at 6613-6619 Del Playa where Ms. Doe was picked up by her friends.

Ms. Doe was located by Justin Hannah around 1:13 a.m. walking between the buildings of the apartment complex at 6613-6619 Del Playa. (4 RT 847; see also, Declaration of Justin Hannah.) This is also the location from which her roommates picked her up. (2 RT 417.)

There is no question, then, that Ms. Doe, when she spoke with Deputy Rivlin, was describing the Camino Pescadero staircase just to the east of 6613 Del Playa (i.e., toward the campus from 6613 Del Playa) as the access point where she went down to the beach, and then was allegedly raped. That location, however, as previously noted, is 21 residences and apartment buildings away from 6547 Del Playa, where Eric Frimpong lived, and where, according to Mr. Frimpong, he last saw Ms. Doe that morning. The distance between Mr. Frimpong’s house and the location where Ms. Doe’s friends picked her up, which she described to Deputy Rivlin as just above where the rape occurred, is at least 900 feet (one-sixth of a mile).

Further, if Ms. Doe walked down the Camino Pescadero stairs to the beach with Mr. Frimpong, they would have had first to walk for a full 300 yards in the opposite direction from the campus past a total of 35 residences and apartment buildings, as well as hundreds of people partying on both sides of the street along Del Playa Drive to get to the Camino Pescadero stairs from Mr. Frimpong’s house. But Ms. Doe suggested, when she was interviewed by Detectives Kies and Scherbarth in her dorm room, that she went right down to the beach after leaving Mr. Frimpong’s house. (6 CT 1536.) Detective Kies, however, failed to question Ms. Doe about how she could have gotten down to the beach quickly and at the same time gone down to the beach using the Camino Pescadero stairs, more than 900 feet from Mr. Frimpong’s house, as she told Deputy Rivlin she had done. Detective Kies also failed to investigate whether any of the hundreds of people who were walking and partying along Del Playa drive at midnight Friday had seen Ms. Doe walking up the street with Mr. Frimpong, with Benjamin Randall (her boyfriend), with someone else, or walking completely alone.

When Detective Kies got the case, he should have known, or could have easily determined, had he read or listened to the audiotape of what Ms. Doe told Deputy Rivlin, or talked directly with Deputy Rivlin, that the Camino Pescadero staircase leading to the beach is located to the east of the park next door to and east of 6613 Del Playa (that is, this staircase is located towards the campus from 6613 Del Playa). The entrance to the beach at El Embarcadero Road near 6547 Del Playa (the house where Ms. Doe played beer pong with Mr. Frimpong on the back patio around midnight), on the contrary, is located to the west of that house, that is, in a direction away from the campus. That she went “towards the campus” to get down to the beach is one of the few points in Ms. Doe’s statements to Deputy Rivlin about which she was very clear and emphatic. Therefore, she could not have been referring to going down to the beach from anywhere near Mr. Frimpong’s house.

Moreover, Mr. Frimpong in February 2007 enjoyed a kind of celebrity status in Isla Vista because the UC Santa Barbara soccer team, of which Mr. Frimpong was a standout member, had just won the college national championship. It is very unlikely that no one would see him and Ms. Doe walking along Del Playa just after midnight if the two of them did walk from his house at 6547 Del Playa all the way along the street to the Camino Pescadero staircase to go down to the beach. Ms. Doe certainly did assert that she walked on Del Playa from Mr. Frimpong’s house all the way to the Camino Pescadero staircase, based on her statements made to Deputy Rivlin, and her being located by Justin Hannah in front of the apartment buildings at 6613-6619 Del Playa means she got to that location somehow.

As I will detail further in a later portion of this declaration, the stretch of beach between the El Embarcadero beach access and the Camino Pescadero stairs further west would not have been passable for Ms. Doe between midnight and 1:00 a.m. on February 17, 2007, without her getting noticeably wet from ocean waves, given the highly intoxicated state that she was in, the tide conditions at that time, and the extensive rock formations she would have had to climb over on the beach to get from the El Embarcadero beach access to the Camino Pescadero staircase. So based on the physical topography of the beach, the location where Justin Hannah encountered Ms. Doe, and her own statements to Deputy Rivlin, she must have gone down to the beach using the Camino Pescadero stairs (if she went down to the beach at all). To get to the Camino Pescadero stairs, she had to have walked a full block on Del Playa to get to those stairs. But the prosecution proffered no witness nor did any witness come forward to substantiate that Ms. Doe was accompanied on that walk by Mr. Frimpong.

When Detectives Kies and Scherbarth interviewed Ms. Doe on the morning of February 17, 2007, they did not question Ms. Doe about the inconsistencies between her description given to Deputy Rivlin of how she got to the beach and the actual location of Mr. Frimpong’s house. Nor did they question her about discrepancies between her statement to Deputy Rivlin that the rape occurred near where her friends picked her up and the actual distance – three football fields – between that location and Mr. Frimpong’s house. Nor did ADA Barron ever question Ms. Doe about these inconsistencies during her April 11, 2007, interview of Ms. Doe. Had any of these law enforcement officials bothered to thoroughly explore these logistical issues they would have been forced to admit that they severely undermined the credibility of Ms. Doe’s allegations.


The SANE (Sexual Assault Nurse Examiner) Program provides specially trained, certified, registered nurses who have forensic training and clinical education to help victims of sexual assault. (Practical Aspects of Rape Investigation: A Multi-disciplinary Approach, 4th Edition, Hazelwood and Burgess, p. 39.) As such, the SANE nurse’s primary responsibility is to the care and comfort of the patient. In the instant case, SART Nurse Judy Malmgren examined Ms. Doe at the SART Cottage on the morning of February 17, 2007, according to standard protocols, but with one significant deviation from approved forensic practices. A sexual assault victim is considered a “living crime scene” necessitating the expedient and thorough identification, collection, and preservation of evidence in and on her body. (Campus Sexual Assault Response Teams: Program Development and Operational Management, Barry and Cell, pp. 8-11.)

Nurse Malmgren failed to further investigate for the presence of injury and/or forensic evidence the interior vaginal vault of (Jane Doe), based solely on the complaint of pain by the patient. (5 RT 1158.) Such an examination is a critical aspect of the forensic investigation of any rape claim. The SART nurse did not administer any local or general anesthetic in order to accomplish this critical examination and investigative procedure, nor did she employ a vaginal aspirate (a sterile fluid used to irrigate the vaginal vault) as an alternative to flush out, collect and preserve any semen. Instead she completed her report without obtaining any visual information about the condition of Ms. Doe’s interior vaginal vault and without swabbing or otherwise collecting evidence from the interior vaginal vault to determine whether any evidence of her alleged attacker existed therein.

It should be noted that Ms. Doe had initially resisted going to a hospital or being examined at all, and she agreed to see a doctor only after her friends and her older sister insisted that she see a doctor. Additionally, while using Mr. Hannah’s cell phone minutes after her alleged rape, Ms. Doe stated to her friend, Lakshmi Krishna: “I’m in big trouble.” (February 17, 2007 Interview of Krishna and others by Dep. Rivlin, Discovery p. 673, line 195.) This statement to her friend that she was in “big trouble” is not the type of statement typically made by a woman who has just been raped.

Ms. Doe was ostensibly worried about going to the hospital because it would be revealed that she was in violation of the terms of her probation for her juvenile DUI conviction. According to Ms. Doe (the documentation relating to this DUI was never provided to the defense), under the terms of her probation she was forbidden to consume alcohol. She admitted to the SART nurse, the investigating officers, and to the District Attorney that she had consumed more than 18 alcoholic beverages during that single night. Being caught in a violation of her probation, on the very day she had just gotten her suspended driver’s license back from the DMV, could in fact have motivated her to bring a false allegation of rape to deflect attention from her violation of probation. In fact, she was never prosecuted for her flagrant violation of her probation. This, despite the fact that she admitted this violation to numerous law enforcement officials.

When a rape complainant refuses or resists any part of the forensic examination, this is an indicator of a possible false allegation of rape. The fact that Ms. Doe initially resisted being examined by medical personnel after making an accusation or rape, and then asked the SART nurse to not examine her interior vaginal vault for evidence of sexual assault, are indicators that she was possibly making such a false allegation. These facts, coupled with Ms. Doe’s blatant probation violation and her extreme level of intoxication, should have created serious doubt as to the validity of her allegations. The investigating officers therefore should have obtained substantial corroborating information and evidence before making any arrest based solely on Ms. Doe’s allegations.

He goes on, but I'm guessing you get where he's going.

This prosecution stinks to high heaven.