A federal appeals court says a convicted rapist must be released from state custody or given a new sentence because state courts mishandled his latest conviction and appeal in an attempted sexual assault case.
The 9th U.S. Circuit Court of Appeals says Frank O. Loher’s 2001 life sentence with the possibility for parole violates federal law because a judge, rather than a jury, found him eligible for the extended sentence. The normal penalty for attempted first-degree sexual assault is 20 years in prison.
Loher did not start serving the life sentence until 2008 because he first had to complete his sentences for prior convictions.
In an opinion handed down Friday, the federal appeals court also said the Hawaii Intermediate Court of Appeals was wrong to reject Loher’s assertion that his appeals lawyer failed him by not arguing that his trial defense was damaged when the judge forced him to testify ahead of his other witnesses.
Loher, 57, pleaded no contest in 1990 to kidnapping, sexually assaulting and attempting to sexually assault two 17-year-old girls and a 27-year-old woman in three separate incidents on Oahu. A state judge sentenced him to concurrent 20-year prison terms.
An Oahu grand jury indicted him in 1999 for attempting to kidnap and sexually assault another woman while he was on parole for the 1990 convictions. Loher went to trial in November 2000.
On the first day of the trial the prosecutor completed presenting all of her witnesses by 2:15 p.m. Loher’s lawyer then asked the judge for permission to start presenting Loher’s defense the following day. He said he had not anticipated the prosecutor finishing so soon, and had not asked defense witnesses to be in court until the trial’s second day.
The judge denied the request and told the defense lawyer that Loher could be the defense’s first witness. The defense lawyer told the judge that Loher has a right not to testify and may choose not to based on what the other defense witnesses say. The judge rejected the lawyer’s argument as an attempt to get around his earlier refusal to delay the trial.
Loher then testified and on cross-examination gave testimony inconsistent with what he had told police. His wife and stepson testified the following day.
The jury found Loher guilty of attempted sexual assault but not of attempted kidnapping.
Because of Loher’s criminal history, the trial judge found that for the protection of the public, Loher would serve a longer-than-normal prison term and handed down the life sentence.
Loher unsuccessfully appealed the conviction and sentence to the state Intermediate Court of Appeals four times. He then filed a petition in federal court, which can consider claims that a person’s state custody violates U.S. laws, treaties or the Constitution.
U.S. District Judge Leslie E. Kobayashi found in 2014 that Loher was not effectively represented when his lawyer failed to appeal his claim that the judge forced him to testify. She also found that the forced testimony and life sentence violate federal legal precedent. Kobayashi ordered the state to release Loher from custody but stayed the order pending the state’s appeal.
The federal appeals court did not uphold Kobayashi’s finding on Loher’s forced testimony claim. But that doesn’t mean the claim is dead, said Federal Public Defender Peter Wolf, who represented Loher in his federal court petition. In addition to instructing Kobayashi to order Loher’s release or resentence, the appeals court also directed her to consider remedies to Loher’s appeals lawyer’s failure to argue the claim.
