In Nejad v. Olens, a Federal District Court judge vacated a Georgia rape conviction on the grounds that the Defendant was never advised that he had a constitutional right to testify in his defense.
In 2005, Nejad was convicted of rape, aggravated sodomy, aggravated assault with a deadly weapon and aggravated battery in Fulton County Superior Court. He was sentenced to serve 35 years in prison. On appeal, he argued that his constitutional rights were violated as neither his defense attorney nor the trial judge ever advised him that he had a right to testify.
The women who accused him of these offenses were prostitutes and Nejad’s defense was that he had consensual sex with them. In opening statement, his attorney told the jury that some of the women continued to provide him sex in exchange for money after the dates of these alleged assaults. Without Nejad’s testimony, however, there was no way to establish these facts at trial.
His trial attorney testified that he was retained a month before the trial and never advised Nejad of his right to testify. According to the trial transcript, the trial judge also neglected to advise him of his rights. The trial judge confirmed that after reviewing his notes from the trial, he had no evidence that he ever advised Nejad of his right to testify. Despite all of this, the prosecutor who tried the case testified that she had a distinct memory of the trial judge advising Nejad of his rights at some point during the trial. Based on this, Nejad’s motion for new trial was denied and his conviction was affirmed by the Georgia Supreme Court.
Nejad then filed a petition for habeas corpus relief in the U.S. District Court for the Northern District of Georgia. In the order granting his petition, the District Court judge stated that, “[the prosecutor’s] memory conflicted with the certified trial transcript…She had no explanation for the fact that her version of what happened does not appear in the transcript. This was a young prosecutor whose first big trial was about to blow up in her face. Call it what you will—wishful thinking, an inaccurate memory, whatever—her testimony about the trial was unreliable and it was objectively unreasonable for the state courts to rely upon her testimony rather than the certified transcript of the trial.”
The District Court also emphasized that because Nejad did not testify, the prosecutor was able to argue to the jury that there was no evidence of consent and no evidence to support the claims his attorney made in opening statement.
As a result, the District Court vacated Nejad’s conviction and held that he must be retried within 90 days or be released. However, it is likely that the State will appeal this ruling to the U.S. Court of Appeals.
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