GA Court of Appeals Reverses Molestation and Rape Conviction

The defendant was charged with multiple counts of sexual abuse allegedly involving his stepdaughter. The girl’s mother, who was married to the defendant at the time, took her to a pediatrician who testified at trial that he noticed an irregularity or asymmetry on her hymen which he said indicated blunt trauma to the vaginal area. He testified that this was consistent with sexual abuse and not consistent with ordinary activities like riding a bicycle, horseback riding or gymnastics. The victim was also examined by a sexual assault nurse examiner, who testified that the symptoms she observed during her examination were consistent with sexual abuse and could not have been caused by consensual sex or other innocent activities.

The Court of Appeals held that the defendant made the requisite showing that his defense attorney was deficient. Trial counsel failed to research medical issues, failed to consider that a nurse practitioner would be qualified to testify as an expert and did not interview either of the State’s medical experts prior to trial. At trial, counsel did not cross-examine one of the witnesses at all and only asked the other two basic questions. Counsel planned to attack the victim’s credibility, pointing out that she did not allege abuse until several months after the defendant had separated from her mother, when the couple was engaged in a divorce with considerable money at stake. He planned to rely on the fact that the child’s hymen was intact, asserting that this meant she never had sex. Because he thought this medical evidence was favorable for the defense, he did not plan to challenge it. At the motion for new trial, the pediatrician stated that he was not interviewed by anyone from Ottley’s trial attorney’s office prior to trial. He also stated that had he been asked during his trial testimony, he would have testified that the slight irregularity that he noticed could have been from masturbation and that “[an] asymmetrical labia can be [a] congenital condition.” Another medical expert retained by the defense on appeal stated that based on his review of the evidence and photos of the hymen, there was no evidence of trauma consistent with a girl who was alleged to have been repeatedly raped.

The Court held that the defense attorney’s decision not to challenge this evidence and to not seek the assistance of a defense medical expert was not reasonable under the circumstances. The report given to the attorney should have put him on notice that the nurse would be qualified to testify, particularly because Georgia law allows nurses to testify as medical experts at trial. Further, because the State’s evidence was not overwhelming, the fact that the defense attorney failed to counter “what he should have known would be important medical evidence” creates a reasonable probability that the outcome of the trial would have been different absent counsel’s errors.