Attorneys for man accused of rape offer detector deal

Defense attorneys for a New York physician charged with raping an Athens woman offered the Athens County Prosecutor's office a roll-the-dice option Thursday: Our client passes a lie-detector test, you let him go.

During a motion hearing in Athens County Common Pleas Court, attorney Derek A. Farmer of Columbus said defendant Charles H. Nguyen "œis willing to take a polygraph, wants to take a polygraph, as additional evidence of his innocence."

Nguyen is charged with rape, kidnapping, aggravated burglary and tampering with evidence. He is in jail in lieu of $500,000 bond.

The catch in the polygraph plan is that the defense wants the state to agree beforehand that if the findings indicate Nguyen is telling the truth about his innocence, prosecutors will move to dismiss the case, "or at least not oppose the results, whatever the results are, to be introduced at trial," Farmer said.

Assistant Prosecutor Keller Blackburn replied that "the state would love to have the defendant take a polygraph," and vowed that if the findings were favorable to Nguyen, he would take that into account in deciding whether to proceed with the case "“ as his office has done before.

Eric Fussner, for example, an Athens County man charged in connection with a New Marshfield shootout/murder, saw the case dropped after a polygraph test supported his story that other defendants forced him to take part.

Blackburn made clear Tuesday, however, that he has no intention of promising up front to drop charges or allow the results to be introduced at trial.

"They're asking for, 'Heads we win, tails you lose,'" Blackburn said, noting that the defense has indicated that even if the results are inconclusive, this should be construed as favoring their client's innocence.

Because they are not scientifically reliable as consistent indicators of honesty, according to county Prosecutor C. David Warren, polygraph results are no longer used in evidence in U.S. courts, unless both sides agree to stipulate to the evidence, which virtually never happens.

Warren noted that the ban on polygraphs is so complete that "if we even mention the word 'polygraph' in a trial, it's an automatic mistrial, and it's prosecutorial misconduct."

Judge Michael Ward listened to arguments on the issue Tuesday, then told the attorneys that whatever they decide between them, "I don't want to hear the word 'polygraph' associated with this case again."

Defense attorneys Farmer and Christopher W. Chan have also made a request "“ which appeared to raise the judge's eyebrows a bit "“ to be allowed to set up, in front of a jury, the bed in which the rape allegedly took place, and then to require the alleged victim to physically demonstrate how her body was situated when she claims the assault occurred.

"So, you want her to assume different positions on the bed in front of the jury?" Ward asked. He suggested there's some question as to whether he would allow this.

Chan, who is from New York, said he believes evidence from the bed and floor around it "“ particularly semen stains "“ will support Nguyen's claim that he and the alleged victim had consensual sex in the bed multiple times in the days before the alleged rape took place.

The woman has alleged that Nguyen, whom she met over the Internet, came to visit her in May. Afterwards, she claims, she told him she was not interested in having a relationship with him and he left town, then came back and raped her in her home.

This was the only time the two had sex, according to her statements. She has also reportedly alleged that Nguyen restrained her, and threatened to kill her young nephew if she did not submit.

If the defense can show that based on the evidence, multiple sexual acts in the bed are more likely than just one, Chan suggested, this could impeach the woman's credibility.

"We can show conclusively... that the positioning (of the stains) is such that it would support our theory that there was consensual sex the whole week," Chan argued. But to make that case, he said, the jury needs to see graphically what the woman claims happened.

Blackburn said the state has asked the woman to provide her bed at the defense's request, but did not seize it, as she said she would then have nowhere to sleep. He noted that investigators have swabbed the bed for DNA, and have seized the sheets from the bed as evidence.

He acknowledged, however, that due to a DNA-testing backlog at the Ohio Bureau of Criminal Identification and Investigation, no results on any DNA swabs have yet been returned. For much the same reason, he suggested, some evidence items "“ including the bed sheets "“ have been submitted to BCII for DNA testing.

The defense attorneys suggested the case is important enough to merit trying to get another agency, such as the FBI, to help with the testing.

The defense has also asked the court to approve paying a set amount of money for a defense investigator, to talk to witnesses and gather evidence. Chan and Farmer say their client, taken from his medical residency at a New York hospital and put into jail in Nelsonville, is financially indigent.

They said they do not want to conduct witness investigations themselves, for fear they might then end up as potential witnesses.

Blackburn argued that two attorneys should be able to handle investigative tasks between them. He also questioned the need to fill a defense discovery request to turn over the alleged victim's criminal history and immigration history.

He called the latter a "unique request," and questioned whether his office is expected to search records in every country on earth.

Farmer and Chan have also asked that Nguyen be freed from jail on his own recognizance. They suggested he can live with relatives in New York or Philadelphia, or in lodgings in Franklin County or Athens County.

Farmer argued that as a man with no prior convictions, now indigent, Nguyen should not be under $500,000 bond. "He's the only Asian in the jail," he added. "He feels threatened; he's afraid."

Blackburn responded that a possible sentence of up to 35 years in prison is "obviously a reason to run" if Nguyen gets out of jail and even lives outside Ohio. This could "give him a chance to get out of the country," he said.

The defense team reiterated Tuesday its claim that the victim's story is, in Chan's words, a "fabrication." He suggested the woman had sex with Nguyen voluntarily in the home of an older relative where she lived, and then she was so ashamed when another relative discovered this fact, she made up the rape story to save face.

Ward indicated he will issue rulings on the pending motions at a later time.