'Freedom is Not a Gift from God You Must Fight for it Every Day'

These are the thoughts I imagine must have been coursing though David Abernathie's mind as he spent eight and one half years in prison, for a rape he did not commit. What a Kafka-esque existence. I don't know if I would have the intestinal fortitude to keep on fighting after all those years of having the legal doors slammed in my face. Losing at trial, losing on appeal, losing his first few rounds with the Nevada Supreme Court. But he had faith, he had persistence, and he had the knowledge that he did not commit the crime.

      Unfortunately for him, he was in the wrong place at the wrong time, and he befriended the wrong man, Frank "Doe" (last name withheld), who was the accuser's stepfather. Frank did not rape his stepdaughter Brandi a few days after Christmas Eve in 1988, as charged, along with David Abernathie. He did, however, rape her two years previously. Her mother didn't believe her then, so in order to get her revenge she had to make sure that mother wasn't around, and she would fix his wagon. Unfortunately, David Abernathie's rights, life, and freedom were trampled by those broken wagon wheels.

      What would I do? How would I feel? How do you keep fighting the good fight when everything looks bleak for over eight years? Well, Abernathie did not go quietly into the good night. David went through a lot of lawyers; he originally had a lawyer named Bob, who is now a prosecutor, David lost. He appealed. He lost again. Surprised? Of course there were allegations of ineffective assistance of counsel. Aren't they present in every case where there is a conviction? Annabelle Hall of Reno contacted me on behalf of the NACDL Committee to Free the Innocent. Would I take the case? Call me old fashioned, but I just don't think people should spend time in prison for crimes they did not commit. I was not the first Las Vegas lawyer that was approached to take this case, but the others were too busy, had conflicts, or just could not commit to the project. There were approximately four full file boxes of materials that needed to be digested in order to understand what had previously taken place and the procedural history that brought David Abernathie to my doorstep.

      I generally don't do post-conviction relief. I feel really constrained by the record. I am much more comfortable when I can create the record. But Annabelle was persistent, and the more I read the case the more I believed that David was telling the truth. But that would be asking too much: defending an innocent man, that was imprisoned for a crime he did not commit sounds a lot like a made-for- TV-movie. I agreed to take the case in June of 1997 then the fun really began.

      The court record was voluminous and yet not complete. I met David Abernathie at Indian Springs Correctional Center about 40 miles south of Las Vegas. In my initial interview, I deliberately underplayed my hand. The last thing my client needed was false hope. I told him that traditionally it was very difficult to win a post conviction relief petition in the State of Nevada, and the U.S. Supreme Court has stated that actual innocence doesn't matter. However, I would do whatever I could to assist him. I'm sure he could have used more encouragement early on, but far be it from me to disappoint. I would rather have better news later than set someone up for a fall. David had been disappointed by too many already.

Polygraph
One of the best things I did was hiring Ron Slay, of Western Security Consultants, to examine David. We drove out to Indian Springs for the "lie detector" test. To say that David was nervous, is like saying Mimi of the Drew Carey show wears a little too much make-up. It was fascinating, the entire process from hooking up to the machine to asking seemingly innocent questions that could make or break the exam. It was uncomfortable. It took David a few times to get through the pretest battery. But finally these three questions were asked:
Q. Did you help to force sex on Brandi?
A. No.

Q. Did you put your penis in Brandi's mouth?
A. No.

Q. Did you force sex on Brandi?
A. No.
Ron Slay provided me with the following confidential report:

Analysis: The data was analyzed by three different computerized algorithms. Each of the three algorithms evaluated the data to be truthful. The data was also evaluated by traditional measurement. Traditional measurements also evaluated the data to be truthful.

Conclusion: In the opinion of this examiner, Mr. Abernathie was truthful to the above noted relevant issue questions.

      Hey wait a minute! Polygraph results aren't admissible in Nevada. So what! Admissibility never stopped the prosecutors from trying to get stuff in that they knew was prejudicial. Why can't I use this report? My feeling on the polygraph is: If it helps my client it's great, if it doesn't, it's unreliable. In this case it was great. I didn't think a jury would get to see the report, but you can bet I included it in my pleadings requesting an evidentiary hearing. Let the judge rule it was inadmissable, after he had seen the results but I'm getting ahead of myself.

'Victim' Recants
While David was proclaiming his innocence as loudly as possible, the "victim" in this case decided she couldn't live with herself any longer. She wrote a letter dated April 8, 1996, addressed "To Whom This May Concern: My name is Brandi and I lied about a man called David Abernathie raping me. . . ." This set the wheels in motion. Mike Johnson, an investigator from Reno hired by Annabelle Hall, tracked Brandi down in California and took a taped statement on June 18, 1996. In that statement she admitted that she "made up a story . . . saying that David had raped me, molested me." She said David never molested her, never touched her inappropriately, he never even made suggestions that she should have sex with him. But he was at Brandi's house around Christmas time in 1988, when Brandi was 14 yrs. old. She said she falsely accused him because David was her stepfather's friend. Talk about being in the wrong place at the wrong time! That Christmas would start the nightmare that robbed David of nearly a decade of his life.

      According to Brandi, when she was 12 years old, Frank had raped her, abused her physically by hitting her with a belt, and emotionally abused her. She told her mother, who didn't believe her. (By the way, on May 3, 1990, Frank at calendar call entered into a plea bargain and plead guilty to a single count of lewdness with a minor, a felony.)

      I found Brandi myself. I'm gun shy about talking to potential witnesses over the phone without another set of ears. So whenever I would talk to her I made sure someone else was there who I didn't want to be a witness. I spoke to her husband many times. He was very protective of her, and leery of me, but eventually she arrived in Las Vegas.

      The District Attorney's investigator also wanted to talk to her; I gave her the hallowed advice, tell the truth. However, the DA's investigator and the prosecutor talked to Brandi, and they weren't very nice.
In fact, it could be construed that the District Attorney's office tried to intimidate her. They mentioned perjury due to her prior testimony. She was understandably upset. Although she voluntarily agreed to come, I wanted her under subpoena to avoid the appearance of impropriety, and in case she didn't appear, I wanted the enforcement power of the courts behind me. I've learned the hard way that if you don't subpoena witnesses even friendly ones you're asking for trouble. I don't know if any of you have had to domesticate an out of state subpoena, but it is a real pain. Hardly anyone does them. There really aren't any forms, and out of state judges are reticent about compelling residents of their state to show up in the decadent, depraved, dreamland called Las Vegas.

      After I dotted the "I"s, crossed the "T"s, and found a local attorney that filed the subpoena on my behalf, I received a call from the judge directly before he would sign the subpoena. He wanted to discuss the process with me. He really wanted to make sure Brandi's expenses were taken care of (which they were). Thankfully, the statute of limitations for perjury is three years in Nevada. We were well past the time limit. The District Attorney was intimating that she was perjuring herself now, some sort of eleventh hour religious epiphany, so she could be blessed and enter into a new religion based on forgiveness. I don't think so! In any event, aren't there some old religions based on forgiveness anyway?

Innocent
There were several potential grounds for post-conviction relief besides the simple fact that David was innocent. Though I thought that this was certainly the best reason. I was concerned that I wouldn't get more than one bite of the apple, and I didn't want to waive any potential grounds. David Abernathie's first petition for post conviction relief was filed December 11, 1992. Of course, The state opposed the petition. On April 19,1994, the district court, without appointing counsel or conducting an evidentiary hearing, denied the petition.

      I made all the standard arguments (which had never worked before), but I had a hole card that they couldn't beat. I had the "alleged victim" who would say she lied under oath. She recanted before I even became involved.
I used the saturation bombing theory. I attached to my motion the Order of Remand by the Nevada Supreme Court; the handwritten, notarized letter of Brandi admitting that she lied about David raping her; Mike Johnson's June 6, 1986, interviews with Brandi; the confidential polygraph report; and the Psychological Evaluation of Brandi, which took place in July 1996, by JoAnn Behhrmen-Lippert, Ph.D in which she states under Impressions:

      Her [Brandi's] presentations about the false allegations are plausible and there is no clear reason why she would be making the current recantations up, especially since she has concerns about what may happen to her as a result. Nor is there any evidence that she presents which suggests that she is being coerced into recanting her prior allegations.

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