The Massachusetts Appeals Court today ordered a new trial for Richard Aspen, 73, convicted in 1998 of repeatedly raping his stepdaughter because the attorney who handled his original appeal blew it.
In its ruling, the court rejected Aspen's contentions that his trial lawyer failed to call witnesses that might have bolstered his claim of innocence on the charges that he raped the girl when she was under 14 and then, after several years, found her and sexually assaulted her again, but said the lawyer who handled his appeal should have at least raised the issue of whether a key expert witness for the prosecution went too far in attempting to characterize certain behavior by the stepdaughter as evidence she had probably been raped.
Appellate counsel's behavior deprived the defendant of an available, substantial ground of defense by "fail[ing] to raise a significant and obvious issue ... which ... may have resulted in a reversal of the conviction, or an order for a new trial...." If the issue had been argued on appeal and [the witness]'s testimony had been held inadmissible, the question would then have been whether there was reversible error.
This is not the first time Aspen has tried to get a new trial. In 2001, the Massachusetts Appeals Court rejected his claim that the prosecutor deliberately sought to exclude men from his jury. In 2007, a federal appeals court upheld that ruling.