An attorney for a Hall County man sentenced to life with 25 years to serve in a molestation case is seeking the Georgia Supreme Court’s review, claiming that “negative ethnic stereotypes” about Latino men were heard by the jury.
Alejandro Martinez-Arias was convicted in February 2017 after a jury trial on charges of aggravated child molestation, aggravated sexual battery and child molestation.
His defense attorney, Matt Cavedon, has filed a petition for the Georgia Supreme Court to review the conviction and opinion by the Georgia Court of Appeals, which upheld the denial of a new trial.
According to Cavedon’s petition, a counselor testified that among Latinos child molestation is “kind of seen as, if it happens … it is the girl’s fault for opening her legs and the boys are just supposed to be that way, they just have urges.”
“These stereotypes are odious and false,” according to Cavedon’s petition. “Latino men are no likelier to molest children than anyone else and no likelier to be tolerated if they do. This testimony should have been excluded as both irrelevant and not rationally based on the witness’s perceptions.”
The case involves allegations involving a young girl who did not “immediately report the abuse because she did not know whether anyone would believe her, and she was afraid of what would happen if she told,” according to the Court of Appeals’ summary of the case.
The court ruled the testimony provided context for the several years of delay before the girl made her outcry.
"The appellate court opinion, which is accurate and reflects the truth of the matter in my opinion, is that the trial court was authorized to conclude that testimony related to the victim's fear and failure to immediately disclose the abuse rather than the defendant's ethnicity,” said Lee Darragh, Northeastern Judicial Circuit District Attorney.
Darragh said it was also important to note that it was in response to the defense’s theory, which was that the allegations were fabricated.
"It was not introduced for the purpose of intimating in any way that Latino men are more inclined toward molestation than others,” he said.
Cavedon said he was concerned that the testimony could have “poisoned” the jury’s deliberations.
"What we're concerned about here is in this case, we heard that kind of language or at least language about 'machismo' and 'sexual perversion' in the actual trial itself from a witness in the open courtroom,” he said. “That means it was there for the jury's consideration. The judge instructed the jury to weigh all of the evidence together for its deliberations and told them that they could use that evidence for whatever purposes they deemed fit."
Betsy Escamilla, the counselor who testified in the case, said she cannot recall all that was said during the trial more than three years ago.
According to the petition, she described herself at trial as “speaking on behalf of scholarly articles and training and professional experiences.
Escamilla said the testimony quoted in the petition are terms that "unfortunately often are frequently justifications by family members in our community."
Cavedon also argued in his petition that Escamilla’s testimony was not of a layperson. Expert witnesses must be disclosed ahead of trial so that the defense can potentially challenge the expert’s assertions or provide its own witness.
The appeals court ruled Escamilla’s testimony was OK because she “offered opinions based on her first-hand knowledge and observations as a member of the Latino community and a counselor for at-risk Latino youths.”
The prosecution has 20 days to file a response, though there is no strict timeline for the court to determine whether to grant a review.