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Georgia Supreme Court hears appeal about role of ethnic stereotypes in Hall County child molestation case
ALEJANDRO MARTINEZ-ARIAS

A Hall County prosecutor was admonished Tuesday, Oct. 19, by the Georgia chief justice for changing her argument at the last minute in a child molestation case involving whether ethnic stereotypes regarding Latino men impacted the trial.  

Without giving notice, Kelley Robertson, chief assistant district attorney for the Northeastern Judicial Circuit, told Supreme Court justices that the state recently amended its argument from what was written in its brief submitted to the court in June. The state’s written brief had stated, “the Appellant is incorrect when he states that any such stereotype was offered in this case, or even implied.”

During the trial in 2017 of Alejandro Martinez-Arias, school counselor Betsy Escamilla said of child molestation in the Latino community: “it’s kind of seen as if it happens … it’s something that you don’t share, that you keep it quiet, that it is the girl’s fault for opening her legs, and the boys are just supposed to be that way, they just have urges.”

Robertson said Tuesday the state conceded ethnic stereotypes were used but that the rest of the evidence was “overwhelming,” including testimony from the victim, her brother, her grandmother and an audio recording the victim herself had made of Martinez-Arias molesting her. Esacmilla’s testimony was not relevant, Robertson said. 

Chief Justice David Nahmias said a written brief was required for the court. 

“You are now saying we should throw your written brief, largely, in the trash,” Nahmias said. “That should not happen on the day of oral argument."

The justices often issue an opinion on the case before them in the months following oral argument.

Martinez-Arias was convicted in February 2017 after a jury trial on charges of aggravated child molestation, aggravated sexual battery and child molestation. He was sentenced to 25 years in prison. 

Martinez-Arias’s lawyers, Northeastern Judicial Circuit Public Defender Brad Morris and Assistant Public Defender Matt Leipold, appealed the decision in September 2020, arguing that a school counselor used negative ethnic stereotypes in her testimony that tainted the jury’s opinion.

“Racial stereotypes do not aid the jury in its search for the truth,” Leipold said before the justices. “It does not matter if they’re directed at the defendant, at the victim, or, as happened here, at both parties. 

Justice Charlie Bethel said Escamilla’s characterization of Mexican homes included that females should be submissive to the men in the house and males were permitted to take sexual liberties with females in the home.

“I don’t think she ever said or implied that men were allowed to, permitted to, take sexual liberties,” Robertson replied.

The appellate must prove that the stereotypes constituted a “harmful error” in this case, and Leipold said Escamilla’s testimony met that standard, in part, because she was presented as an expert witness.

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