Oklahoma man alleges misconduct at Kenyan orphan abuse trial

AP News
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Posted: Oct 05, 2015 4:56 PM

OKLAHOMA CITY (AP) — An attorney for an Oklahoma man convicted of sexually abusing children at a Kenyan orphanage has asked for a federal court hearing to explore defense allegations of misconduct by a prosecutor in the case.

The request filed Friday on behalf of Matthew Lane Durham, 21, of Edmond, claims that a key expert witness from Kenya presented false testimony at Durham's trial about physical findings of abuse of the victims, which the prosecutor, Assistant U.S. Attorney Robert Don Gifford II, did not correct.

"They failed to correct the testimony of the Kenyan medical witness who testified," Durham's defense attorney, Stephen Jones, said Monday. "They should have notified us, notified the court. Instead, they let it remain. We think it justifies a new trial."

The defense request alleges that Gifford did not turn evidence over to Durham before or during the trial that indicated the expert's testimony was not credible, which could have helped Durham prepare his defense.

"This (is) a highly unusual matter which directly and substantially impacted the trial and the rights of the defendant," Jones says in a motion to supplement Durham's request for a new trial in U.S. District Court in Oklahoma City. "The integrity of defendant's trial today is suspect."

A spokesman for the U.S. Attorney's office, Bob Troester, said Monday the office will file an appropriate response to the defense claims.

A federal jury found Durham guilty in June of seven counts of engaging in illicit sexual conduct in foreign places. Prosecutors said Durham targeted orphans while serving as a volunteer at the Upendo Children's Home in Nairobi, Kenya, between April and June 2014. Jurors cleared Durham of accusations that he had planned to abuse the children before leaving the United States.

Durham was convicted on charges involving girls ranging from 5 to 15 years old and a 12-year-old boy at the orphanage, where he had served as a volunteer since 2012. Durham is awaiting sentencing. Convictions for engaging in illicit sexual conduct in foreign places can draw prison terms of up to 30 years and a $250,000 fine, though under federal sentencing guidelines terms of imprisonment are often much less.

The defense motion indicates information that cast doubt on the medial expert's testimony was turned over to the judge in the case, U.S. District Judge David Russell, by Oklahoma County District Attorney David Prater on Sept. 28. Russell immediately turned it over to prosecution and defense attorneys, it says.

Memos attached to the legal papers indicate Prater became aware of the issue through conversations with a top assistant in his office who Gifford had contacted during the trial concerning the Kenyan medical witness.

At Prater's assistant's urging, Gifford contacted an Oklahoma physician who said "it would be quite rare" for several of the victims to produce the same findings in sexual assault examinations unless the perpetrator was using some kind of instrumentation, according to the memos.

In a statement, Prater said he turned the information over to Russell after learning it had not been turned over to Durham's defense attorney, "so he would be aware of it and proceed as he determined necessary and appropriate."

"It was my duty to disclose the information that came to my attention," Prater said. "I take that responsibility seriously."