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  • WisBar News
    February 27, 2018

    Federal Appeals Court Overturns Sexual Assault Conviction Against Officer

    Joe Forward

    Seventh Circuit

    Feb. 27, 2018 – The U.S. Court of Appeals for the Seventh Circuit has overturned the conviction of a Milwaukee police officer sentenced to 24 years in federal prison for sexually assaulting a woman who called 911 to report vandalism by her neighbors.

    Federal prosecutors alleged that Milwaukee Police Officer Ladmarald Cates violated the civil rights of Iema Lemons in 2010 when he coerced her to perform sexual acts while on-duty and while carrying a firearm. The jury ultimately convicted Cates of the civil rights violation, concluding that he committed “aggravated sexual abuse.”

    Aggravated sexual abuse, under federal law, carries a maximum penalty of life in prison. Sexual abuse that was not “aggravated” sexual abuse carries a maximum penalty of one year, ten years if the violation results in bodily injury. Thus, Cates’s possible prison fate hinged on whether he committed “aggravated” sexual abuse.

    In Cates v. U.S., No. 16-1778 (Feb. 20, 2018), a three-judge panel for the Seventh Circuit Court of Appeals ruled that the jury received a faulty jury instruction, Cates was prejudiced by it, and his trial and appellate lawyers failed to challenge the clear error.

    Strickland prejudice is established if there is a reasonable probability that a properly instructed jury would have found the evidence insufficient to prove that Cates committed aggravated sexual abuse,” Judge Diane Sykes wrote. “That standard is met here.”

    The 2010 Incident

    Lemons called 911 to report a neighbor dispute that turned violent. Cates and his partner arrived at Lemons’s home where she lived with her children, brother, and her boyfriend. The officers took her brother into custody on an outstanding juvenile warrant.

    Lemons (or someone) sent the kids to her boyfriend’s sister’s house, and Lemons sent her boyfriend to the store for cigarettes. Cates and Lemons were now alone in her apartment. Cates’s partner was in the squad car attending to Lemons’s brother.

    At trial, the stories conflicted, so the jury was required to make credibility determinations. But Lemons said that Cates demanded oral sex. Lemons said she did not consent but did not resist because she was afraid, noting Cates had his firearm.

    Lemons also testified that Cates grabbed her by the neck and raped her. The situation outside became chaotic when Lemons and Cates emerged from the house. Lemons began screaming at the neighbors and her brother fled police custody.

    Cates’s partner chased Lemons’ brother and used force to subdue him, which enraged Lemons. There was testimony that Lemons kicked the officer in the back but she denied it. In any event, more officers arrived and arrested Lemons, her brother, and two others.

    While being taken into custody, Lemons protested loudly that she had been raped and continued to assert the claim at the police station. She was transported to a hospital and examined by a nurse. She showed signed of being choked, but did not show signs of vaginal trauma or injury. Cates ultimately admitted that he and Lemons engaged in oral sex and intercourse, but said it was consensual. Lemons’s DNA was on his uniform.

    The Jury Instruction

    The prosecutor alleged that Cates committed aggravated sexual abuse resulting in bodily injury, subjecting Cates to a possible maximum life prison sentence.

    A person is guilty of aggravated sexual abuse, under 18 U.S.C. section 2241(a), by knowingly causing another person to engage in a sexual act “by using force against that other person” or by “threatening or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so.”

    But the jury instruction that was submitted to the jury, at the government’s request, said “force” includes psychological coercion and, according to the three-judge panel’s opinion, “may be inferred from a disparity in size between the defendant and the victim.”

    But as Judges Sykes noted, that jury instruction misstated the law.

    “The jury instruction relaxed the government’s burden and permitted the jurors to find force even if they concluded that Cates only used psychological coercion or an implied threat based on his size or status as a police officer,” she wrote.

    Cate’s attorney, whose Wisconsin license was later revoked for widespread misconduct, did not object to the instructions. And a second lawyer, who replaced the first lawyer before sentencing, waited too long to request an extension for post-verdict motions.

    In addition, Cates’s counsel did not challenge the conviction or sentence, only the denial of a request for more time to file post-verdict motions. Cates filed a habeas corpus petition, arguing his lawyers were ineffective for failing to challenge the jury instruction.

    The Seventh Circuit Court of Appeals concluded they were. “And the errors were prejudicial,” Judge Sykes wrote. “There is a reasonable probability that a properly instructed jury would find the evidence insufficient to prove aggravated sexual abuse.”

    Judge Sykes noted that the jury did not find that Cates caused bodily injury, so the jury probably did not believe he used physical force. The jury also acquitted him of the firearm charge, so it likely did not believe he threatened to use it on her if she refused.

    In addition, Lemons testified that she did not resist because of Cates’s size and his status as a police officer, more evidence that Cates likely did not need to use force or threats of violence against her. Thus, the lawyers’ failure to object prejudiced his case.

    “In closing, it’s worth repeating that the errors by trial and appellate counsel meant the difference between a sentence capped at one year and a maximum penalty of life in prison,” Judge Sykes wrote.

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