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The request filed on Friday on behalf of Matthew Lane Durham, 21, of Edmond, claims that a key expert witness from Kenya presented false testimony at Durham’s trial about physical findings of abuse of the victims, which the prosecutor, Assistant US Attorney Robert Don Gifford II, did not correct.
“They failed to correct the testimony of the Kenyan medical witness who testified,” Durham’s defence attorney, Stephen Jones, said on Monday. “They should have notified us, notified the court. Instead, they let it remain. We think it justifies a new trial.”
The defence request alleges that Gifford did not turn evidence over to Durham before or during the trial that indicated the expert’s testimony was not credible, which could have helped Durham prepare his defence.
“This [is] a highly unusual matter which directly and substantially impacted the trial and the rights of the defendant,” Jones says in a motion to supplement Durham’s request for a new trial in US District Court in Oklahoma City. “The integrity of defendant’s trial today is suspect.”
Illicit sexual conduct in foreign places
A spokesperson for the US Attorney’s office, Bob Troester, said on Monday the office will file an appropriate response to the defence claims.
A federal jury found Durham guilty in June of seven counts of engaging in illicit sexual conduct in foreign places. Prosecutors said Durham targeted orphans while serving as a volunteer at the Upendo Children’s Home in Nairobi, Kenya, between April and June 2014. Jurors cleared Durham of accusations that he had planned to abuse the children before leaving the United States.
Durham was convicted on charges involving girls ranging from 5 to 15 years old and a 12-year-old boy at the orphanage, where he had served as a volunteer since 2012. Durham is awaiting sentencing. Convictions for engaging in illicit sexual conduct in foreign places can draw prison terms of up to 30 years and a $250 000 fine, though under federal sentencing guidelines terms of imprisonment are often much less.
The defence motion indicates information that cast doubt on the medial expert’s testimony was turned over to the judge in the case, US District Judge David Russell, by Oklahoma County District Attorney David Prater on September 28. Russell immediately turned it over to prosecution and defense attorneys, it says.
Memos attached to the legal papers indicate Prater became aware of the issue through conversations with a top assistant in his office who Gifford had contacted during the trial concerning the Kenyan medical witness.
At Prater’s assistant’s urging, Gifford contacted an Oklahoma physician who said “it would be quite rare” for several of the victims to produce the same findings in sexual assault examinations unless the perpetrator was using some kind of instrumentation, according to the memos.
In a statement, Prater said he turned the information over to Russell after learning it had not been turned over to Durham’s defence attorney, “so he would be aware of it and proceed as he determined necessary and appropriate.”
