Fairfax rape case ends in acquittal over inherently incredible complainant testimony

Fairfax rape prosecutions — and all sexual assault prosecutions — can involve high stakes for criminal defendants. As a Virginia criminal lawyer, I read with satisfaction a Fairfax County Circuit Court judge’s reasons for acquitting a rape defendant upon finding the teenage complainant’s testimony inherently incredible as a matter of law. Commonwealth of Virginia v. Herrerta, Fairfax County Circuit Court No. FE 2020-241 (Jan. 4, 2023). This is an example of a judge following his oath rather than replacing the state of the law with how the judge wants the governing law to be.

How can inherently incredible testimony lead to an acquittal without ever getting to a jury? The answer comes from the Herrerta Fairfax rape case

In the Herrerta Fairfax rape prosecution, the judge took the defendant’s criminal defense lawyer’s motion to strike the evidence under advisement and submitted the case to the jury, which convicted Herrerta of rape. Herrerta’s lawyer helped obtain this acquittal in part by having the pretrial preliminary hearing (held in Fairfax County General District Court) recorded by a court reporter, where the Virginia District Court’s are otherwise courts not of record, meaning that one or both parties are on their own to arrange for proceedings in that court to be recorded. Also of help was probably the judge that Herrerta drew for his trial in Fairfax County Circuit Court, where we usually do not know who our assigned judge is earlier than on the eve of trial. Herrerta’s judge stuck to the governing caselaw, including Vance v. Commonwealth of Virgnia, 155 Va. 1028 (1930), including Vance’s pronouncement that:

“It is unnatural and difficult to believe that an innocent helpless girl, immediately after the crime of rape had been committed against her, in an adjoining room to the one occupied by her grandfather, would make no appeal to him to shield her, or report to him the crime which had been perpetrated against her. It is also unnatural and difficult to believe that the prosecutrix, for more than a week, surrounded by her parents and other members of the family, would during all that time remain silent. She was not under the control or dominion of the accused, and every moment of the time she had an opportunity to report the offense.” Vance, 155 Va. at 1031 (quoted in the Herrerta Fairfax rape Circuit Court opinion letter.)

A Virginia acquittal is final and cannot be overturned on appeal

No matter how much flack will be hurled at Herrerta, this and all acquittals are final and cannot be reversed by any court. I will not be surprised to see the Virginia Supreme Court overruling such outdated, sexist, and insensitive sounding reasoning from the Virginia Supreme Court in 1930 in Vance, which reversed Vance’s conviction due to the complainant’s claim that she struggled against being raped while her 8 year old sister was in the room to see the crime being committed, her grandfather was in the adjoining room, she told nobody about the incident for six days, and neither the prosecutor nor her sister were called to testify for the prosecution. However, so long as Vance remains not overruled, the lower Virginia courts must follow the case, and thus this Fairfax rape case acquittal for Herrerta, whose neice claimed he had raped her several years before when she was a teenager. The inconsistencies and evidentiary omissions in the prosecutor’s case against Herrerta were more glaring than in Vance. 

In acquitting Herrerta in this Fairfax rape case, the judge relied on more recent caselaw, on substantial inconsistencies between the complainant’s testimony at trial versus at the preliminary hearing, and in the complainant’s own admission of the limits of her memory, for instance with her testimony that “I don’t remember exactly how it happened and when it happened. I mean my memory compared to how it was before in 2019 isn’t the same as it is now in 2022.” Herrerta. 

What does a criminal defense lawyer do when finding helpful caselaw that reads as sexist and insensitive?

A criminal defense lawyer has no business taking a case if s/he is not going to use all tools lawfully available for the advantage of the defendant, which includes relying on the sexist and insensitive-sounding language of Vance that was partially relied upon in the Herrerta Fairfax rape case acquittal .This reminds me of a conversation I had with a public defender appellate lawyer at a reception for the defense team that had argued against a capital punishment case at the Supreme Court. I told her I wanted to transition to criminal defense from the corporate law firm litigation and regulatory work I was doing (that transition came within a year from there), but that while I was fully comfortable with defending drug cases, that I was trying to figure out how to justify defending a rape defendant if I knew he had committed the crime (and by now, over thirty years later, I can unhesitatingly defend virtually any criminal defendant). She replied that it is the prosecutor’s burden to be concerned about that. As overly-simplistic as her answer was, that was sufficient to convince me to jump into criminal defense with both feet and my entire being.

Fairfax criminal lawyer Jonathan Katz treats you and your case as unique and deserving of a full frontal assault against Virginia felony, misdemeanor and DUI prosecutions. You will know this within moments of starting your free initial confidential in-person consultation with Jon Katz about your court-pending Virginia criminal case. Call 703-383-1100 to schedule your meeting with Jon, which he usually can schedule for the same day or day after you call.