LAWRENCE, Kan. – Fairgrounds are home to hayrides, livestock judging and pie eating contests.
In Lawrence, you can add “felony trials” to that list.
“It is not the atmosphere to conduct such an important part of our society,” defense attorney Sarah Swain said.
As outlined in jury plan protocols ordered by the Douglas County District Court in October 2020, the fairgrounds venue functioned as a space to restart jury trials following the COVID-19 pandemic, which put the majority of court proceedings at a standstill.
The policy was aimed at social distancing, while protecting the rights of criminal defendants.
But in a Douglas County Fairgrounds pandemic rape trial, prosecutors and a defense attorney point to a rape conviction’s broken record as a good example of why funnel cakes and felonies should never go hand-in-hand.
“Dozens of trials I’ve participated in, this was never an issue until we were out there operating under the COVID protocol,” Douglas County Deputy District Attorney Josh Seidan said.
The Broken Record
In May 2021, a Douglas County jury found Erick Ogwangi, 36, guilty of rape.
The conviction stemmed from an incident in January 2017 in which Ogwangi forced himself on a woman who was staying in his home, according to a press release from the Douglas County District Attorney’s Office.
He was sentenced to serve 147 months in prison, which amounts to just over 12 years.
In an effort to appeal the jury’s decision, court documents show Ogwangi requested transcripts of his four-day trial. But the production of Ogwangi’s transcripts did not go as planned.
“I have never seen a record where hundreds and thousands of words, any one of which could give the man a new trial, are just gone or missing,” Swain said.
Court records show the transcripts all four days of trial are filled with gaps.
A search for the word “unintelligible” in the trial transcripts reveals the word appearing 1,923 times on the first day of trial, 1,891 times on the second day, 698 times on the third and 15 times on the final day, court documents show.
Additionally, records show when an entire passage could not be transcribed, it was marked “inaudible,” which appears 13 times on the first day of trial and 15 times on the second.
“I just know there were times in those trials when I was trying to take notes, and I was having a hard time hearing what people were saying,” Seidan, deputy district attorney, said.
Seidan, who prosecuted Ogwangi, said if he couldn’t hear, he’s convinced a court reporter likely couldn’t either.
He said bad acoustics and masked attorneys in a pandemic trial are likely two of the many reasons the record was so incomplete.
“The concern we had in this office is, ‘It’s going to be challenging to try a case in that sort of venue,’” he said.
Adam Hall, who also prosecuted cases at the fairgrounds, said in a statement that the venue was “not designed for court proceedings, and that fact was apparent during the trial.”
He noted folding tables, rolling TV stands, and portable speakers and microphones as being less than ideal for any court proceeding and far from thoughtful towards the serious nature of the crimes being alleged.
“And to the extent that a courtroom is designed to visually remind those who enter it that they are in a hallowed hall of justice, the Fairgrounds were lacking,” Hall said in his statement.
Fairgrounds for a trial?
The fairgrounds venue, as outlined in jury plan protocols, sought to restart trials and prevent further back up in the justice system.
Douglas County District Attorney Suzanne Valdez said she urged the courts to remain in a courthouse setting and raised security, technology and logistical concerns just days after the protocols were released.
She says her concerns were overlooked.
“Well, I was told this is what we are going to do and we are going to go forward,” Valdez said.
With trials resuming in April 2021, a judge denied Valdez’s motion to delay an attempted murder case. No delay was sought for Ogwangi.
“I don’t believe there’s any way a person can get a fair trial in a makeshift courtroom,” Swain said.
Chief Judge James McCabria, who issued the protocols, said he disagrees.
Though he and senior court reporter Mary Kay Howe declined requests for on-camera interviews, they issued a joint statement.
In it, they note the Ogwangi case was the only fairground trial or hearing with record issues and that no attorneys or participants raised concerns about making a record.
The statement says they believe the Ogwangi broken record was due to the court reporter having “some personal issues” that caused her to leave her job without producing a transcript.
Using a courtroom audio recording that “wasn’t very good,” an outside transcriptionist attempted to rebuild the record.
Later, a better recording was discovered, the transcript updates and “inaudible” or “unintelligible” were reduced to 214.
“I’m hopeful this conviction stands,” Seidan said.
Seidan said he worries a broken record could mean Ogwangi’s conviction is vacated and a second trial ordered.
“We just think it would be extremely traumatic for any victim to have to go through that (testimony) again,” he said.
But if that happens, it will no longer be due to a broken record.
Working together for several months, attorneys reached agreement on the repaired record.
In late February, the court of appeals lifted its order delaying an appeal to Ogwangi’s conviction, which can now move forward.
As for the victim in the case, she has moved out of state, and through the district attorney’s office, declined our request for comment.