PUBLISHER'S NOTE: The National Registry of Exonerations recently published an entry on Ronald Jacobsen's exoneration - in spite of his prosecutor's battle to fight the DNA testing (which ultimately cleared him) at every turn. By way of background, here is a headnote for the the post on the Jacobsen case which I published on September 21, 2021.
"Ron Jacobsen: Georgia; (Another one for our 'enough to make one weep' department. HL): Exonerated after 30 Years of Wrongful Conviction thanks to DNA testing and the Innocence Project. But innocence didn't matter very much to the Newton County District Attorney's Office which fought DNA testing in the case - and then opposed a new trial, "even after DNA testing excluded him as the assailant. "..“The District Attorney’s Office fought DNA testing in this case and then opposed a new trial even after DNA testing excluded Mr. Jacobsen as the assailant. It later fought to keep him in jail after his conviction was vacated, claiming that it would retry him for over two years in spite of the exonerating DNA evidence,” said Vanessa Potkin, Jacobsen’s Innocence Project attorney. “The District Attorney’s Office’s claim that Mr. Jacobsen was too dangerous to be released on bail while awaiting a retrial, but could walk free immediately if he pleaded guilty, is unconscionable. It also demonstrates how plea bargains can be used coercively to obtain and uphold convictions without truth or fairness. Not everyone is able to do what Mr. Jacobsen did — reject an opportunity to walk out of prison after 30 years of wrongful incarceration, knowing he could be imprisoned months or years more and that COVID-19 was spreading rapidly through jails. Ron’s perseverance and fortitude has enabled him to finally get justice.”
PASSAGE OF THE DAY:
Entry: "Ronald Jacobson: Georgia," entered on September 14, 2021.
Gist: "Shortly after 4 a.m. on Saturday, January 6, 1990, a 21-year-old woman was abducted from a Golden Pantry convenience store in Covington, Georgia where she was working as a clerk.The woman later told a harrowing tale of being sexually assaulted repeatedly over the next 90 minutes as her assailant drove out of Newton County and into two neighboring counties. Initially, he drove north on Interstate 20 toward Atlanta, she said.
He forced her to engage in oral sex while driving and stopped on several occasions in Rockdale County to sexually assault her vaginally and anally. Finally, in DeKalb County, around 5:30 a.m., the truck ran out of gas. When the attacker went to find gasoline, the woman fled to a nearby house. Police were called, but by the time they arrived, the truck was gone.
A rape kit was taken at a hospital and the woman was treated for cuts and bruises she said she sustained when the man beat her in the truck. She said the last time she had engaged in consensual sex was six days ago—on New Year’s Eve.
At the store, police found a bloody handprint on the wall and a folding knife outside on the ground. Blood tests were performed by the Georgia Bureau of Investigation (GBI) on the knife and swabs of the handprint. The rape kit was examined, but when no sperm was identified in a microscopic screening, no further testing was conducted. At that time, the use of DNA testing was in its infancy—the first DNA exoneration was in 1989 and only two had occurred prior to this crime.
In her initial statement, the victim (identified as B.T.) told police that a stranger came into the store and abducted her. She said that hours earlier, two men and two women came into the store and that around 4 a.m., one of the men returned alone. He came up as if to buy cigarettes, but then came behind the counter and threatened her with the knife. B.T. said she felt a stinging sensation on the side of her head and felt blood. She was forced to accompany the man into his truck, which she said was silver or gray with wood and twigs in the back. She said the man was 5 feet 9 inches to 5 feet 10 inches tall and weighed about 165 pounds. B.T. said she had never seen the man before that night.
B.T. also said that someone had been with her in the store but left just as the attacker entered. She said the man could have been Bob Knight. She suggested that police ask Knight if he was there with her.
Asked by police why anyone would want to attack her, she said, “I said what did I ever do to you, I don’t even know you. . . . I just knew, my own personal opinion, he come by the store, saw me earlier, got the idea that I might be there alone--come in there, sure enough, I wasn’t busy, so he took off again. Young girl alone, three o’clock in the morning, why not?”
Asked if she could say where they had traveled, she said, “I think it was, like, to the second red light and took another left, I believe. I don’t, you know. I know it was somewhere in that area. Because, at that time, you know, I know somebody that lives right across from there. And if I had a chance, you know, I would have gone that way. But I was waiting for the appropriate opportunity. If one came up.” B.T. did not mention the person by name who lived near there.
Two days later, on January 8, B.T. was interviewed again and she said once more her attacker was a stranger. She told police she was unsure if the man had any tattoos. She helped police create a composite sketch.
On January 9, police and B.T. drove from the store in an attempt to recreate the route the attacker had taken. She again said her attacker was a stranger.
She said that at one of the stops during the attack, she thought about trying to escape by fleeing to the home of a friend, Ronald Jacobsen, who lived nearby. She said her abductor “let me smoke a cigarette for a while and I remember this location because he let me sit up in the truck. I remember this location, too, because it’s close to Brenda Street where Ron Jacobsen, my ex-boyfriend lives. At the location by the Wal-Mart on the cul de sac.”
Jacobsen, 29, and B.T. had dated for about a month in the fall of 1989, but Jacobsen had broken it off because his girlfriend, who lived in Chattanooga, Tennessee, was pregnant.
Police interviewed B.T.’s father, who said that B.T. was having trouble with two men named Tony and J.R. He also suggested police talk to his friend, Robert Knight, who had been in the store with B.T. earlier that night. B.T.’s father had already talked to Knight and during those conversations, B.T’s father said B.T. had had some problems with Jacobsen.
B.T. met Jacobsen in September 1989 when Jacobsen became the roommate of George Hatcher. Hatcher was then dating B.T.’s mother. When B.T. and Jacobsen met, B.T. had just been released from the Georgia Mental Health Institute. She had been hospitalized for depression and a suicide attempt after ending a relationship with a different man.
On January 10, Knight gave Jacobsen’s name as a possible suspect. Police pulled a copy of Jacobsen’s driver’s license photo and decided he resembled the composite sketch. Police showed the photo, which had Jacobsen’s name on it, to Knight, who then said that Jacobsen was the man he saw as Knight was leaving the Golden Pantry.
Police met with B.T. the next day and suggested Jacobsen was her attacker. She said unequivocally that he was not. Police decided she should take a polygraph examination, but when they got to GBI headquarters, police learned she was pregnant and the polygraph examiner would not administer the test.
The two lead case agents then consulted with a behavioral scientist at GBI, who advised: “Often when victims experience traumatic events like B.T. experienced, they hide the facts in the back of their mind because they are afraid of the person who did this to them. An angle with which to approach [B.T.] is to go through the crime step-by-step and essentially tell her all that you know happened. Show her that you understandvher and have patience with her. Give [B.T.] some time and be patient and she will be able to recall the perpetrator eventually.”
Ultimately, B.T. acquiesced to the police version and implicated Jacobsen.
On January 12, police questioned Jacobsen. He denied any involvement and said he had spent the weekend in Chattanooga with his girlfriend, who lived with her mother and her mother’s boyfriend. Police did not record the interrogation. However, a police report was written in the first person as if Jacobsen had authored it. He was never shown a copy of it to determine its accuracy.
That same day, Jacobsen was arrested. He was charged with aggravated sodomy, kidnapping with bodily injury, and aggravated assault. He was not charged with any crimes in the other counties.
Less than six months later, in June 1990, Jacobsen—who was charged under the name Ronald Jacobson—went to trial in Newton County Superior Court. The prosecutor acknowledged in his opening statement that the case was slightly problematic, saying that the police “went back to her and kind of told her who it was, and at that point in time she said yes, it was him, and she went and told the whole same story again but just supplied his name at this point in time.”
The prosecution’s theory was that after B.T. and Jacobsen stopped dating in early December 1989, Jacobson didn’t want to let go. And in fact, he had given B.T. a ring in mid-December, which B.T. had said “was like a Christmas present or early Christmas present.”
The prosecution’s case rested on the testimony of Knight and B.T. There was no physical or forensic evidence tying Jacobsen to the crime.
Knight said that he recognized Jacobsen as the man he saw come into the store as Knight was leaving. And for the first time, Knight said that he asked B.T. if she knew the man.
“She told me she had been dating him, a former boyfriend I believe is the way she said it,” Knight testified.
B.T. identified Jacobsen as her attacker. She said she had not immediately identified him because he had threatened to kill her if she did. Jacobsen’s defense attorney did not attempt to impeach B.T. with her statements saying that she had considered trying to escape when she was in the neighborhood where Jacobsen lived. The defense attorney also failed to raise B.T.’s prior mental health issues.
Jacobsen testified that when he saw B.T. in mid-December shortly after they stopped dating, he gave her the ring because she “was talking suicide” and he knew she had “a history of mental problems.” He said he told her it was “a friendship ring.” When B.T. had expressed an interest in continuing to date, Jacobson told her that he couldn’t—his girlfriend was pregnant.
Jacobsen testified that he felt bad for B.T. She said that no one loved or cared for her. He became aware of mental health issues when, shortly after they met, B.T.’s mother told him that B.T. had recently left a mental institution.
He said that on January 5, he was at the home of Gordon Lynn, who was the brother of his roommate, George Hatcher. Jacobsen said he left from there on the 150-mile drive to Chattanooga, arriving between 10 p.m. and 11 p.m.
He said he got up the next morning—January 6—and left between 7 a.m. and 7:30 a.m. Two hours earlier, B.T. had already broken free from her attacker. Jacobsen said he drove to his job in Atlanta, worked until late afternoon, and then returned to spend the night of January 6 in Chattanooga.
The prosecutor attempted to impeach him with the police report of his statement, which he had not written or reviewed. The report quoted him as saying that on the night of the crime he was “home.” Jacobsen explained that he meant his girlfriend’s home.
Jacobsen was confronted with references in the police synopsis to his roommate Hatcher going to work that Saturday morning at 6:45 a.m. and that he believed Hatcher’s girlfriend (B.T.’s mother) was at the house. The prosecutor contended that Jacobson would not have known these facts if he was in Chattanooga. Jacobson explained that this was the time Hatcher usually went to work. He testified he wasn’t just “guessing” that Hatcher was at work at this time because this was Hatcher’s routine, and his girlfriend was usually over at the house.
Jacobsen said he didn’t own a truck or drive anyone else’s truck.
Jacobsen’s girlfriend, her mother, and her mother’s boyfriend testified that Jacobsen arrived on Friday night, and they stayed up until 2:30 a.m. watching television. They said he was out the door by 7:30 a.m. the following morning.
The weekend was memorable in part because Jacobsen’s girlfriend’s birthday was two days earlier on January 3. When Jacobsen returned after work on the evening of January 6, he brought her a new car as a present. A friend of the family testified that he saw Jacobsen in Chattanooga on Sunday morning, January 7.
Jacobsen worked at PMP Motor Cars Auto Repair in Atlanta. His employer testified that Jacobsen worked Monday through Saturday from 9:30 a.m. to 4 p.m. with Sundays off. Although there were no timecards, he said Jacobsen was at work on Saturday, January 6. He also testified that Jacobsen had no access to any vehicles at the business—rebutting the prosecution suggestion that Jacobsen had abducted B.T. in a truck he took from PMP Motor Cars Auto Repair.
On June 12, 1990, the jury convicted Jacobsen of aggravated sodomy, kidnapping with bodily injury, and aggravated assault. He was sentenced to life in prison.
In November 1991, the Court of Appeals of Georgia upheld his convictions.
In 2003, George passed a statute allowing for post-conviction DNA testing. Jacobsen reached out to the Innocence Project in New York City. Due to the heavy backlog of requests, it was not until 2013 that his case was accepted. In August 2015, after the Newton County District Attorney’s Office refused to consent to the testing, Innocence Project lawyer Vanessa Potkin, joined by the Georgia Innocence Project, filed a motion to obtain such testing. The motion was granted in December 2015.
In March 2017, Potkin filed an extraordinary motion for a new trial based on the DNA test results that excluded Jacobsen and identified male DNA that was not linked to anyone else.
District Attorney Layla Zon opposed the motion, advancing a highly controversial argument that the rape shield law barred the introduction of the DNA evidence. As Potkin noted in response, the rape shield law is designed to preclude “irrelevant evidence” offered to impugn the character of a sexual assault victim, such as evidence of a reputation for promiscuity. If the rape shield law barred relevant evidence that demonstrated a person’s innocence, it would be unconstitutional, she argued.
On December 18, 2017, Superior Court Judge Eugene Benton agreed with Zon and denied the motion for a new trial.
Just six months earlier, the Court of Appeals of Georgia, in an unrelated case, addressed the same issue. “[W]e note potentially serious concerns regarding the notion that the [Rape shield] act is so broad as to exclude all evidence ‘relating to’ a victim's past sexual behavior with the sole exception being evidence related to activity which included the defendant. In so doing, we contemplate a scenario where the prosecution asserts the Rape Shield Statute to exclude evidence of the DNA results in a fact pattern… where the evidence would be highly probative of innocence, directly related to the honesty of a witness, yet clearly related to the past sexual behavior of the victim. The possibility of this scenario unfolding in a criminal case raises myriad questions related to the Confrontation Clause and Due Process protections of our constitutions. But this is not the case before us.”
Jacobsen’s legal team appealed Judge Benton’s decision. They noted that Judge Benton’s ruling, if allowed to stand, would result in the “absurd” result in which “DNA evidence would be a tool solely of the prosecution, only to be used where DNA inculpates, but inadmissible where it excludes an accused or convicted person.”
On January 18, 2019, perhaps moved by the 2017 comments by the Court of Appeals of Georgia, Zon filed a motion with the appeals court. She asked that the case be remanded to the trial court because she had agreed to an order granting the motion for a new trial.
Despite agreeing to the new trial, Zon refused to dismiss the case and Judge Benton refused to set a bond. More than a year later, Zon had not taken any steps toward retrying the case. In March 2020, Potkin, joined by attorneys Donald Samuel and Amanda Clark Palmer, from the Atlanta law firm of Garland, Samuel & Loeb, filed an emergency motion for Jacobsen’s release, citing the ongoing risk of Covid-19 in the prison and the state of Georgia at large. Zon offered Jacobsen a deal to plead guilty in return for his immediate release. Jacobsen turned her down.
Benton finally relented and set a $500,000 bond, requiring Jacobsen to post $55,000 to obtain his release. In June 2020, Zon was appointed to a Superior Court judgeship and her chief deputy, Randy McGinley, was sworn in as her successor.
Finally, on November 2, 2020, Jacobsen’s family posted the $55,000 and he was released. The following day, McGinley was elected District Attorney. He promised a review of the case.
On August 25, 2021, McGinley dismissed the charges."
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6029
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
