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Testimony ends in sex assault trial after defense rests case Tuesday

Extended rebuttal case causes closing arguments to be pushed until Wednesday

Posted: September 10, 2013 - 11:07pm  |  Updated: September 11, 2013 - 12:02am
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Dr. David Foran, director of the graduate Forensic Science Program and supervisor of the Forensic Biology Laboratory at Michigan State University, answers questions posed by Assistant Public Defender Eric Hedland during the trial of Frank W. Lee in Juneau Superior Court on Tuesday.  Michael Penn | Juneau Empire
Michael Penn | Juneau Empire
Dr. David Foran, director of the graduate Forensic Science Program and supervisor of the Forensic Biology Laboratory at Michigan State University, answers questions posed by Assistant Public Defender Eric Hedland during the trial of Frank W. Lee in Juneau Superior Court on Tuesday.

Testimony has concluded in a sexual assault trial where a 60-year-old man is accused of assaulting a younger family member while she slept, and the case is expected to go to the jury after closing arguments Wednesday morning.

The jury last week heard Frank W. Lee, a Juneau resident originally from Hoonah, drunkenly confess to performing oral sex on the woman on his birthday last year during a phone call that was secretly recorded by police. The police had obtained a warrant that authorized them to record the call.

But as the defense presented its case on Tuesday, the jury heard from a witness who reported overhearing the alleged victim infer that she made up the allegations.

“In order to get rid of someone that you don’t want to have around, just accuse them of rape, testify to a grand jury, and it’s done and over with,” is the statement Albert Lord said he overheard the woman tell someone on her cell phone as she was waiting for a bus.

Lord, a handyman by trade, served on the grand jury that indicted Lee on the three felony sexual assault charges last September. He testified from the witness stand on Tuesday that he went to the downtown bus stop to catch a ride home after the grand jury proceedings on Sept. 14, 2012, four days after the alleged assault. He said he saw the alleged victim along with two companions waiting inside the bus stop lobby. He overheard her phone conversation from about 12 feet away, he said.

Lord said he was disturbed by the incident, and he reported it to the court shortly afterward. He expressed concern that the woman was “playing the system,” especially given her changed demeanor. He said both women were quiet and crying during the grand jury testimony, but then “laughing hysterically” and “acting as if it were a game” at the bus stop.

Lord’s testimony lends support to the defense’s theory that the woman, a mother in her early 20s, may have fabricated the allegations for a variety of reasons, including to prevent Lee from obtaining custody of her son.

State prosecutors, on the other hand, say the victim awoke during the assault and that she yelled at Lee to stop twice before he ran out of the bedroom. The police were called within the hour, and they obtained the confession the next day.

Assistant District Attorney Amy Williams attempted to dismiss Lord’s claim as “unbelievable” and a “concoction.” To combat the testimony, she requested to recall the alleged victim to the witness stand as a rebuttal witness, a motion that the judge granted.

The alleged victim then testified she was not talking on her phone at the bus stop, but simply holding it up to her ear so she could listen to music without headphones. She flatly denied making any phone calls as she was waiting for the bus — that is, until Lee’s defense attorney Assistant Public Defender Eric Hedland confronted her with phone records which showed she made about five calls in that time frame. She then said she just didn’t remember making any phone calls during that time since it happened a year ago.

Williams also recalled the woman’s companion to the stand, and she testified that it was only she who had been laughing, not the alleged victim. She said she was flirting with her new boyfriend who was tickling her.

The Empire is not disclosing the alleged victim’s name since the Empire does not publish the names of victims or possible victims of sex crimes. The name of the woman’s friend is also being withheld in order to protect the alleged victim’s identity. The Empire is not disclosing how Lee and the alleged victim are related, but they are not related by blood.

The defense on Tuesday also called an expert in DNA analysis to the stand, Dr. David Foran, a professor at Michigan State University who directs the graduate forensic science program and who oversees the school’s forensic biology laboratory.

Foran testified the defendant’s DNA should have been found on the victim’s body given the allegations in the case, but that it was not. The DNA evidence showed that finger swabs taken from Lee only contained his DNA profile, and likewise, swabs taken from the alleged victim only contained her DNA profile.

“There’s every reason to believe that an assailant’s DNA should be there,” Foran said under questioning from Hedland.

Foran cited the fact that the DNA samples from the alleged victim were collected within a matter of hours of the assault, the fact that the woman reported she did not shower, wash or urinate before the samples were collected and the fact that saliva is a rich source of DNA cells.

“Given all the facts, I would expect there to be DNA there if someone had oral contact with her recently,” he said.

Hedland again moved for a judgment of acquittal after the rebuttal evidence, but Juneau Superior Court Judge Louis Menendez denied the motion. The judge previously denied a similar motion on Monday.

Lee chose not be testify in his own defense.

Closing arguments are expected to take place on Wednesday morning.

If convicted, Lee could be facing a maximum possible penalty of 99 years in prison for each of the three charges against him.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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