Less then two hours after a judge sentenced Brian Conway to three to six years in prison for the 2005 rape of a Penn State student, the 22-year-old had a new lawyer and was well on his way to requesting a new trial.
Court documents submitted on Conway's behalf by new attorney Norris Gelman argue that his former counsel, Joseph Amendola, was legally ineffective in the American University student's defense -- failing to object to misleading statements delivered to the jury by Judge Thomas Kistler and prosecutor Lance Marshall.
The post-sentencing motion requests that a hearing be granted to air Conway's laundry list of concerns, and an appeal be granted if the evidence is found compelling.
Marshall made much mention of Conway's conflicting initial statements to police, the court documents read, suggesting they may indicate his guilt -- Gelman contends that Amendola should have requested that Kistler remind the jury that the inconsistent police statements cannot be used to prove guilt beyond a reasonable doubt.
Gelman also challenged the court's definition of legal consent, calling it "over broad" and in violation of the United States constitution. The court defines a victim as unable to give consent if he or she is "unable to make a reasonable judgement as to the nature or harmfulness of the conduct charged;" Gelman said the definition fails to take the social context of romance into account and takes away male defender's right to due process of law.
"Sex with an intoxicated woman is not rape," he wrote. "Liquor and even drugs may be potent agents of incapacitation, but they are also the common ingredient of college courtship."
Amendola also failed to rebuke prosecutor Marshall for calling Conway a "sexual predator," Gelman wrote. Such characterizations, he argues, break Pennsylvania law and unduly prejudiced the jury
Lastly, the motion pinpointed an inconsistency in the judge's final instructions to the jury: Kistler first said that evidence of a defendant's good character alone could create a reasonable doubt of guilt, but then later instructed jurors to weigh character "along with the other evidence in the case." How can a jury consider evidence "in and of itself," Gelman asks, and also weigh it with everything else?
Conway was not the only client Amendola lost: Josephy Ventura, sentenced to 20 to 40 years in prison for the murder of a Penn State student, will consult Centre County Public Defender Casey McClain, according to court documents.
