Estimated read time: 3-4 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
SALT LAKE CITY — Two men convicted of sexually assaulting a Salt Lake County woman have been granted a new trial after the Utah Court of Appeals ruled that a prosecutor improperly appealed to jurors' emotions during the original trial.
In March 2013, a jury convicted David Deng Akok of rape, a first-degree felony. The same jury found John Atem Jok guilty of two counts of forcible sex abuse, a second-degree felony. The men were also convicted on one count each of intoxication, a class C misdemeanor.
The jury's verdict came after about four hours of deliberation, but attorneys for Akok and Jok argued in their appeals that those deliberations were prejudiced by the prosecutor's final statement to the jury.
Akok and Jok were drinking alcohol with a woman at her apartment in September 2012. The woman told police she had fallen asleep and woke up to find Jok fondling her. When she told him to stop, the woman said Jok stuck his hand down the front of her pants, causing her "sharp pain," according to the trial record.
When the abuse by Jok ended, Akok began to grope the woman, court records state. The woman told investigators Akok raped her, despite her pleas that he stop.
The woman was taken to a hospital, where a nurse found injuries consistent with the woman's account of what had happened but "could not conclusively confirm that (the woman) had been sexually assaulted," court records state.
They took advantage of a very vulnerable victim. Don't let them take advantage of (her) again. Thank you.
–closing statement from Matthew Janzen, prosecutor
Akok claimed sex with the woman was consensual. Jok denied having any sexual contact with her.
During his final closing argument, prosecutor Matthew Janzen told jurors that if they looked at "the totality of the evidence," it would be very clear that Akok raped the woman and Jok touched her without her consent.
"They took advantage of a very vulnerable victim," Janzen said, according to the trial record. "Don't let them take advantage of (her) again. Thank you."
Attorneys for Akok and Jok argued in their appeals that the statement was improper because it "appealed to the jurors’ emotions and diverted their attention from their legal duty to determine guilt impartially.”
In an opinion published Thursday, the Utah Court of Appeals agreed. The court noted that because Janzen made the statement during the rebuttal phase of closing arguments, the defense was not allowed to explain to the jury that it was improper.
Akok's attorney asked Judge Ann Boyden to declare a mistrial once the jury had left the courtroom. Boyden denied that request.
Instead, the judge agreed to call the jurors back into the courtroom and give them a "specific admonition" to ignore the prosecutor's statement in their deliberations. The appellate court described Boyden's admonition as "watered-down" and said it "did not adequately cure the prejudicial effect of the prosecutor's statement."
There is a reasonable likelihood that, in the absence of the prosecutor's improper statement, there would have been a more favorable result for (Jok and Akok).
–Judge Gregory K. Orme
"We are convinced that there is a reasonable likelihood that, in the absence of the prosecutor's improper statement, there would have been a more favorable result for (Jok and Akok)," wrote Judge Gregory K. Orme, who authored the appellate court's opinion.
The court overturned Akok's rape conviction and Jok's forcible sex abuse convictions, saying its confidence in the verdict had been undermined. It also recommended separate trials for the men because "the prosecutor frequently lumped the two men together" during the original trial.
Missy Larsen, spokeswoman for the Utah Attorney General's Office, said the office's Criminal Appeals Division will conduct a careful review of the opinion before deciding whether to appeal it.
Boyden scheduled a May 11 hearing to review the appellate court's ruling. Jok and Akok, who were being held in jail pending their original trial, remained in custody Thursday. Email: gliesik@deseretnews.com Twitter: GeoffLiesik
