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FATHER DENIED NEW TRIAL ON RAPE CHARGES

SHARE FATHER DENIED NEW TRIAL ON RAPE CHARGES

The Utah Supreme Court has denied a new trial to a man convicted of raping his daughter, concluding that the man's lawyer - now a judge - behaved properly at trial.

Third District Judge John Rokich had granted Anastacio Fernandez a new trial, saying that attorney Clint Judkins' "unprofessional errors" may have led to Fernandez's conviction. Judkins is now a 1st Circuit Court judge.But in a 4-1 decision, the high court reversed Rokich's ruling. Four justices concluded that Judkins' tactics - including his failure to find out what witnesses the prosecution would call - were consistent with an attorney's latitude in handling a case.

Justices Gordon R. Hall, Richard C. Howe, Christine M. Durham and Michael D. Zimmerman joined in the ruling. They concluded that Fernandez did not prove that Judkins' trial tactics harmed him. But in a dissenting opinion, Justice I. Daniel Stewart said that if the constitutional right to effective legal counsel means anything at all, Fernandez is entitled to a new trial.

Stewart condemned Judkins' failure to interview witnesses, cross-examine key witnesses and introduce evidence favorable to Fernandez. Those failures were "serious and unjustifiable" Stewart said.

He also condemned his colleagues' decision to overturn Rokich's ruling. The four justices abandoned "elementary rules of appellate procedure" and "cavalierly cast doubt" on Rokich's decision. The four justices' ruling has damaged the constitutional right to effective counsel, he wrote.

Rokich had ruled that a jury would probably have found Fernandez not guilty if Judkins had done a better job of preparing for trial and prosecuting the case.

Judkins testified at a state hearing that he did not do a lot of research on the case because he had extensive background in defending against such charges.

Fernandez was charged with raping his daughter repeatedly over a two-year period. The 14-year-old girl testified that her father had raped her 100 times from the time she was 11 years old to the time she was 13.

The girl's testimony was the key evidence against Fernandez. The doctor who examined the girl said he couldn't tell if she had had intercourse. A psychologist testified that the girl appeared to suffer from post-traumatic stress disorder but said the trauma could have been caused by making up the accusation against her father.

The girl's mother testified that the girl never told her about the alleged rapes and was sometimes untruthful.

Judkins did not introduce a written medical report in which the examining physician concluded he "would be surprised if (the girl) was regularly sexually active."

Judkins also did not introduce testimony that the girl did not get along with her father and wanted him out of the house.

Fernandez is serving a minimum, mandatory term of 15 years in prison for the crime.