Editor’s Note: By publishing this article, this website and author are not expressing any opinion regarding whether the subject of the article, a man found guilty of sexual assault, committed a crime. Rather, the article merely examines whether or not he received a fair legal proceeding as is afforded to every United States citizen by the Constitution.
On August 20, 2015, Samuel Ukwuachu, a Baylor football player, was convicted by a McLennan County, Texas jury on one count of sexual assault. The conviction was based on a sexual encounter between Mr. Ukwuachu and Jane Doe at Mr. Ukwuachu’s apartment in the early morning hours of October 20, 2013. Mr. Ukwuachu admitted that a sexual encounter occurred, but contended that it was consensual. Jane Doe contended that she did not consent to the sexual encounter. After a three-day trial, the jury found Mr. Ukwuachu guilty and imposed an eight-year prison sentence. However, the jury recommended that the sentence be fully probated such that Mr. Ukwuachu spend no time in jail. The trial judge placed Mr. Ukwuachu on probation for ten years and sentenced him to 180 days in county jail as a condition of his probation.
In May, Mr. Ukwuachu appealed his conviction to the 10th Circuit Court of Appeals in Waco, Texas, alleging, among other things, that his constitutional rights were violated because prosecutors drew “false” inferences from phone records that were not admitted into evidence during the trial. The appeal is pending. [Read Mr. Ukwuachu’s full appellate brief here]
Only two people truly know whether the sexual encounter between Mr. Ukwuachu and Jane Doe was consensual or a sexual assault. However, the Constitution grants Mr. Ukwuachu a right to a fair trial without the taint of prosecutorial misconduct. Generally speaking, prosecutorial misconduct occurs when a prosecutor breaks the law or an ethical standard during the course of a prosecution. Long ago, the United States Supreme Court described the special role of a prosecutor:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern it all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor– indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring out a just one.
At the time of the incident, Peni Tagive, also a Baylor football player, was Mr. Ukwuachu’s roommate. They lived in a two-bedroom apartment near the Baylor University campus. Mr. Ukwuachu, Mr. Tagive and Jane Doe all attended a party held at the Waco Convention Center after Baylor’s homecoming football game on October 19, 2013. At the end of the party, Mr. Ukwuachu and Jane Doe agreed to get together later. The parties disputed whether the intent was to go get something to eat or to go to Mr. Ukwuachu’s apartment. Jane Doe left the party with friends and returned to her apartment. When she arrived at her apartment at 2:13 a.m., she texted Mr. Ukwuachu that she was home, and he went to pick her up. Mr. Ukwuachu and Jane Doe then went to Mr. Ukwuachu’s apartment.
Mr. Tagive did not own a car, so he called a friend, Morgan Reed, to pick him up from the party at the Waco Convention Center and take him home. Ms. Reed picked him up and took him to Whataburger and then to his apartment. She went into the apartment with Mr. Tagive, walked his dog, then left. Neither was certain of the times, but both believed that Ms. Reed dropped him off at around 1:00-1:30 a.m., before Mr. Ukwuachu and Doe arrived at the apartment. Mr. Tagive testified that he was at home in bed when he heard Mr. Ukwuachu and a female enter the apartment. He heard nothing else after that.
At trial, Doe testified that the rape was violent and that she screamed very loudly:
Mr. Tagive testified that he was at home in bed and heard no screaming at any time.
Mr. Tagive also testified that he is a light sleeper:
On the second day of trial, prosecutors got copies of Mr. Tagive’s phone records.
The time stamps of phone activities are in UTC (Coordinated Universal Time), which is the same thing as Greenwich Mean Time. Because local time on October 20, 2013 is CDT, to get local time you have to subtract 5 hours from the UTC time listed in the phone records.
The last phone call Mr. Tagive made to Morgan Reed occurred at 1:06 a.m., which roughly aligns with the testimony of Mr. Tagive and Ms. Reed that she dropped him off between 1:00 – 1:30 a.m. He made one other call at 2:06 a.m. then there are no calls until 11:00 a.m. When attempting to convince the judge to allow the phone records into evidence, the prosecutor told the judge the following:
Based on the time change, the prosecutor and his expert admittedly misinterpreted the phone records. When the times are properly converted, it shows that Mr. Tagive made no calls at 3 or 4 o’clock or through the rest of the morning. However, the prosecutors allegedly used this misinformation to threaten Mr. Tagive that if he testifies that he was at home at the time of the incident, they would prosecute him for aggravated perjury:
The judge gave the defense a day to review the newly disclosed phone records. The next day, Mr. Ukwuachu’s lawyer pointed out the time difference and objected to the phone records coming into evidence. The judge excluded the phone records, but allowed the prosecutor to ask questions about phone calls:
Because the phone records did not contradict Mr. Tagive’s version of events, he decided to testify and not invoke his Fifth Amendment rights. It should be noted that the prosecutors offered Mr. Tagive immunity if he would testify that he was not at home at the time of the incident. Mr. Tagive declined the immunity offer and testified that he was at a home. The prosecutor cross examined him about the phone records:
As you can see, the prosecutor has now corrected his time difference error, but he assumed in his question that the records, which were not in evidence, show that Mr. Tagive was making calls across town. The phone records do not evidence this, and the question conveyed to the jury that the prosecutors have the phone records and they show he was across town.
It is not just Mr. Tagive that testified that he was at home, his friend who dropped him off at home, Morgan Reed, confirmed the timing. Then, the prosecutor went after her with the same line of questioning:
Thus, the prosecutor is conveying to the jury “I have the phone records, and they show that Mr. Tagive was across town when he says he’s at home. This witness is lying.” The prosecutor further argued during closing arguments to the jury that he has the phone records and tells the jury what the phone records say:
The prosecutors knew, or should have known based on the evidence, that the phone records suggest that Mr. Tagive was at his apartment at the time of the incident. In their closing arguments, prosecutors admit that they do not know if Mr. Tagive was at home at the time of the incident:
If the prosecution believed that the phone records say what they have been telling the jury they say, yet in closing they admit they don’t know if Mr. Tagive was at home or not, this demonstrates that they mislead the jury about where Mr. Tagive was during the incident.
Here are the phone records that the jury never got to see:
The phone calls made between 6:05-6:06 in UTC time translates to 1:05-1:06 a.m. in CDT. The right hand column shows the location of the cell tower through which those calls were routed by longitude and latitude coordinates. For reference, here is a map showing the location of that cell tower and its proximity to Mr. Ukwuachu’s apartment:
As you can see the tower that routed Mr. Tagive’s calls to Morgan Reed is approximately 2.1 miles from Mr. Ukwuachu’s apartment.
On the other hand, the call Mr. Tagive made at 2:06 a.m. was routed through a different cell tower located just 1.2 miles from Mr. Ukwuachu’s apartment.
While the prosecutors told the jury that the calls made at around 1:00 a.m. were made from “across town”, the jury did not know that the call made approximately 30 minutes prior to the incident was routed through a tower close to Mr. Ukwuachu’s apartment, which would have been consistent with Mr. Tagive’s testimony that he was at home.
The prosecutors likely knew that they had to marginalize Mr. Tagive’s account of the events. They did so by arguably misleading the jury about what the phone records showed and threatening Mr. Tagive with a perjury prosecution based on their misinterpretation of the phone records.
On appeal, the court will consider: (1) whether the prosecution’s actions were more than a vigorous prosecution and crossed over into illegal or unethical conduct; and, (2) if so, whether the evidence was material to the jury’s determination of guilt. If they answer both questions in the affirmative, Mr. Ukwuachu’s conviction could be reversed and he could be granted another trial. Stay tuned.