Former Baylor University football player Sam Ukwuachu deserves a new trial because prosecutors abused the grand jury process to intimidate a defense witness and used improperly admitted extraneous offenses to convict him, Ukwuachu’s lawyer argued Wednesday.
The three judges on Waco’s 10th Court of Appeals heard oral arguments in Ukwuachu’s appeal of his August 2015 conviction for sexually assaulting a fellow Baylor student. No ruling was issued Wednesday.
A 54th State District Court jury at the time of the conviction recommended a probated sentence for Ukwuachu, who risks his freedom and faces up to 20 years in prison if he is granted the new trial he is seeking.
Ukwuachu, who is from Pearland, claims he had consensual sex with the now-former Baylor student. Revelations from his trial and the trial of former Baylor defensive end Tevin Elliott opened the floodgates to the ongoing sexual assault scandal at Baylor. Elliott is serving a 20-year term after his conviction on two counts of sexual assault in 2014.
The controversy over the way Baylor officials handled reports of sexual assaults and domestic violence led to the ousters of former Baylor President Ken Starr and former head football coach Art Briles and spawned federal Title IX lawsuits and multiple investigations.
The Texas Rangers are conducting a preliminary investigation of Baylor with local prosecutors to determine whether further action on their part is warranted, a Texas Department of Public Safety spokesman said Wednesday.
Ukwuachu’s attorney, William Bratton, said after the arguments that it is unfair to “lump Sam in with all those others.” He said Ukwuachu’s case should stand on its own because he is innocent and deserves a new trial.
Ukwuachu said after the hearing that he was “encouraged” about his chances to get his conviction overturned. Bratton said Ukwuachu, who graduated from Baylor, has been working as his “paralegal” and helping with the appeal of his case.
The main focus of Bratton’s arguments Wednesday centered on prosecutors’ efforts to subpoena Peni Tagive, Ukwuachu’s roommate, before a grand jury a month before Ukwuachu’s trial.
Assistant District Attorney Sterling Harmon argued that Ukwuachu told Tagive that he could ignore the subpoena, which Tagive did, forcing officials to get an order compelling his appearance.
Harmon told the justices that officials at that point were investigating Ukwuachu for witness tampering and needed to get Tagive’s testimony on record in case he decided to change his story.
Bratton said prosecutors strong-armed Tagive and intimidated him by improperly using his cellphone records to try to coerce the testimony they desired.
Prosecutors made an 11th-hour attempt to introduce the phone records, which they argued proved Tagive lied about his whereabouts on the night of the alleged assault. Judge Matt Johnson did not admit the phone records, and it was discovered that the times on the records were not Central time but for a time zone with a six-hour difference, which prosecutors did not originally take into account.
The victim testified that she went to Ukwuachu’s apartment after a Homecoming party and Ukwuachu sexually assaulted her. She testified that she screamed loud enough for anyone in the apartment to hear her.
Tagive testified he was in his bedroom at the time and heard nothing after Ukwuachu and the woman came in.
Prosecutors also trampled on Ukwuachu’s due process rights by improperly arguing before the jury that the phone records prove Tagive lied when the judge did not allow them to be introduced into evidence, Bratton said.
“You need to control this because this isn’t how it is supposed to be done. This whole trial was infiltrated with false claims and it can’t be left to stand,” Bratton told the three-judge panel of Chief Justice Tom Gray, Justice Rex Davis and Justice Al Scoggins.
Bratton didn’t spend much time Wednesday arguing his other points of appeal. But he made a brief mention of his claims that the testimony of Jacqueline Wonenberg, a former girlfriend who lived with Ukwuachu when he attended Boise State University, was improperly allowed because the door to her rebuttal testimony was not opened by Ukwuachu, but by prosecutors cross-examining the former freshman All-American.