Local News, Public Safety
Convicted sex offender claims attorney failed him
Posted on Nov 12, 2009 by Trish Mehaffey.
A Springville man convicted in 2004 of two counts of second-degree sexual abuse against two girls ages 10 and 12 claims his attorney didn’t do his job and asks for new trial.
Richard O’Toole, 39, who is serving a 50-year prison sentence, claimed in his application for post conviction relief that his former attorney, Mark Brown, failed to call witnesses on the list who could have put doubt on the victims’ testimony.
Brown during a hearing on Tuesday in Linn County District Court said he didn’t call some of the witnesses because they would have negatively impacted the case. Brown said he discussed with O’Toole whether to use those witnesses at the time and it’s what they both decided.
“It was a strategic decision but I would have never made it without the client’s input,” Brown testified.
O’Toole also claimed Brown didn’t address the prosecution’s failure to prove the age of the girls when the alleged abused happened.
The abuse of the girls started when they were 8 and 10 and continued for a few years, according to the victims’ testimony at trial.
O’Toole claimed the age element of the crime wasn’t proven and it could have made a difference, possibly 15 years, in his sentence if one of the girls wasn’t under age 12 at the time of the abuse. He said Brown failed to include that in the directed verdict argument.
Brown said there wasn’t any age dispute during the trial.
O’Toole also claimed Assistant Jerry Vander Sanden said improper things during his closing argument at trial but it wasn’t recorded and Vander Sanden testified he didn’t remember making those remarks.
Sixth Judicial District Judge Ian Thornhill took the case under advisement and will submit a ruling. He gave the attorneys a month to file any additional briefs.
The Iowa Court of Appeals affirmed O’Toole’s conviction in 2005. The court ruled there was substantial evidence for a conviction.
Applications of post conviction relief are commonly filed and can be filed up to three years after a conviction or an appellant decision.
merleandersen
13. Nov, 2009
I have a few friends where this guy is going, they're looking forward to meeting him.
Tyree_C
13. Nov, 2009
So he what? Wants less time because one of the girls might have been 13 instead of 12? I don't get it…he's gone for life. What will the new sentence be? Life minus one day?
NomerBull
13. Nov, 2009
His 50-year sentence started in 2004 when he was 34, so he'll be as old as 84 when he gets out.
He's trying to say he waited until one of the girls was 12 before raping her, which could possibly knock as much as 15 years off his sentence – making him 69 years old if he serves the full but lesser sentence. Then with "time off for good behavior", he could be out before turning 60.
He has nothing to lose by filing these appeals. I bet a lot of frivolous ones would never get filed if there was a risk of them getting time tacked on for losing an appeal.
IowaGalCR
13. Nov, 2009
In my NOT so humble opinion, concerning Pedophiles, Sex Offenders, and Habitual Offenders, I think they should automatically, relinquish the right, to appeal. I also do not think they should have the rights of other prisoners. I'm not saying Prison is a skate for people, but these Heinous Monsters, should be left with no TV, no radio, no decks of cards. Silent labor, and the bare necessities, to suffer with their thoughts, like their victims, always will.
Grandma of 6
13. Nov, 2009
With all due respect IowaGal, relinquishing their right to appeal might not be the way to go. Sometimes there are cases where there are false accusations and the person is innocent, then what? They have to sit in prison for their sentence? I understand your feelings, my child was sexually abused at a very young age. But I also know, there are people who are innocent as well.
simpli_fi
13. Nov, 2009
I'll bet he's tired of being the little girl by now.
lobosolo
13. Nov, 2009
i don't think his attorney failed him, i do think his parents failed him.
shotfeel
13. Nov, 2009
By "not recorded" is he trying to say the court reporter wasn't present and doing their job? Or is he saying the transcript doesn't have the things only he thinks were said? I'd be concerned if there was no record or the closing arguments, just because that's not my understanding of how the courts work.