SPOKANE, Wash. -- A former Spokane police sergeant guilty of raping a coworker could get a new trial.
In court Monday, a judge ruled arguments for a new trial for Gordon Ennis will be heard on June 15. This is the same day Ennis is expected to be sentenced.
Prosecutors reiterated their argument that Ennis missed the 10 day deadline to file a motion for a new trial. While the defense, Ennis' new attorney Mark Vovos, maintained that it was implied at the May hearing Vovos would be allowed an extension to file a motion for a new trial.
"The state is saying essentially that the ten days is the ten day and if you don't make a motion to extend before the ten days then that's the end of it. I don't read it that way," Vovos said.
Requesting a new trial means the judge would throw out the old verdict and bring in a new jury to do the trial over again. For that to happen, the court has to find any issues that happened during the criminal process that resulted in an unfair trial. Those issues include juror misconduct, prosecutorial misconduct, or newly discovered evidence.
When asked the basis for Vovos' motion for a new trial, he told the judge it is based on Ennis' former lawyer's conflict of interest to an extent.
"The motion for new trial has to do with the specific issues that are laid out as far as silence, and the comment by the prosecuting attorney, the jury instructions," Vovos said in court.
According to court documents, Vovos claimed the prosecutor violated Ennis' right to remain silent and his right to counsel by commenting during closing arguments about his silence prior to trial. Vovos said this undermined his fifth amendment right to silence.
According to court transcripts the prosecuting attorney said to the jury, "Part of what you will do in the case is to look at the testimony and examine it. We heard the defendant's statement for the first time yesterday when he took the stand...He is not presumed credible."
Vovos also claimed the defense counsel had a conflict of interest that materially affected and prejudiced, Ennis' legal defense at trial. Court documents said Ennis' previous trial lawyer discovered that one of the State's key witnesses, Doug Strosahl, had engaged in sexual contact with the complaining witness during the same party that led to the criminal charges. Vovos claims that due to "trial counsel's allegiances, he chose not to pursue or present any of this critical information during the trial..."
In a declaration to the court, Ennis said he was called to his attorney Rob Cossey's office where he was told that Strosahl's attorney told Cossey that Strosahl had consensual sex with the victim in the case the same night Ennis was accused of sexual assault. He said the contact happened before Ennis had contact with the victim. Ennis said he was also told the contact was in the same manner that was alleged against him. Cossey told Ennis that the victim believed Strosahl was Ennis. Court documents said both men had bald heads and goatees and were the only two men at the party that evening. Ennis said he and his wife were not suppose to tell anyone this and they believed it would be useful in his defense.
Vovos also claims the court erred in giving instruction number 10 and 11 to the jury. Court documents allege the court erred in presenting instruction number 11 and incorrectly allowed the jury to speculate that Ennis did not have to prove that "the alleged victim was incapacitated - rather, only that Mr. Ennis reasonably believed that the victim had the capacity." It also claims that instruction number 19 was "prejudicially erroneous under the facts in this case because it created an impermissible comment on the alleged victim's credibility." Court documents said the instruction did properly advise the jury that they are to decide credibility in assessing this instruction as well as the standard of proof is on the prosecution to prove all elements of the crime beyond a reasonable doubt.
Ennis was found guilty of second degree rape for the sexual assault of a coworker that occurred on October 24, 2015.
Documents said the victim described herself as "very intoxicated” at the party. She said she passed out in a guest bedroom and woke up to Ennis touching her inappropriately. She told detectives she tried to move away and heard Ennis say, "I gotta go, I gotta go home," in a panicked voice. Investigators said they later found the woman's DNA in Ennis's car on the gear shift and driver's side seat belt.