Cop’s conviction in on-duty rape overturned
Jury received inaccurate instructions
A now-fired Milwaukee police officer convicted of raping a woman after he responded to her 911 call in 2010 is entitled to a new trial, a federal appeals court ruled Tuesday.
A flawed instruction to the jury could have made the difference between “a sentence capped at one year and a maximum penalty of life in prison,” according to the decision by a three-judge panel at the Court of Appeals for the Seventh Circuit.
Federal prosecutors now have the choice of asking the full appeals court to review the decision, retrying the case, reaching a plea agreement with Ladmarald Cates or dismissing the charges.
Reached Tuesday, a spokesman for the U.S. Attorney’s Office in Milwaukee said they are reviewing the decision and have not yet decided on next steps.
Both Cates’ appeals attorney, Dennis Coffey, and his trial attorney, Bridget Boyle (who has since had her law license revoked for misconduct in a different case) provided ineffective assistance, the ruling says. As a result, Cates’ constitutional right to counsel was violated.
Coffey did not return a telephone call. Boyle could not be reached.
At issue in Cates’ case was the definition of “aggravated sexual abuse.” Under the law, that crime requires either physical force or threats of physical force that result in the fear of death, kidnapping or serious bodily injury, the decision says.
The jury at Cates’ 2011 trial was told that lesser “threats and other nonphysical forms of coercion — including a mere disparity in coercive power or size — could suffice,” according to the decision. That characterization was incorrect, and neither of Cates’ attorneys challenged it.
Using the flawed definition, the jury convicted Cates of violating the woman’s civil rights by committing aggravated sexual abuse, which carries a maximum sentence of life in prison. He was sentenced to 24 years.
In contrast, a civil rights violation that includes non-aggravated sexual abuse carries a one-year maximum sentence.
At Cates’ trial, the woman testified that Cates squeezed her neck. She also said she was terrified because he was an armed police officer. Those things would be enough to meet the higher standard, the ruling says.
However, the original jury found that the woman did not suffer bodily harm. That jury also acquitted Cates on a separate charge of using a firearm to deprive the woman of her civil rights.
“There’s a reasonable probability that a properly instructed jury would find the evidence insufficient on this point,” the appeals court found.
The Journal Sentinel does not name victims of sexual assault.
The woman, who reached a $2.5 million settlement in her civil suit against the city as a result of Cates’ actions, was troubled by Tuesday’s decision, according to one of her attorneys, Robin Shellow.
“I believe justice can still be achieved,” Shellow said. “Nothing in this opinion makes law enforcement less accountable for brutalizing the citizens it has sworn to protect.”
She added: “The Seventh Circuit has by its decision opined: ‘Me Too’ may mean ‘Maybe not’ if one’s assailant is a cop. It is a very troubling slippery slope.”
Then-Milwaukee Police Chief Edward Flynn fired Cates in December 2010 for lying and for “idling and loafing” because having sex on duty is against department rules.
In 2011, a Journal Sentinel investigation revealed Cates had been accused of breaking the law five times before. Three of the previous allegations involved sexual misconduct — two with female prisoners and one with a 16-year-old girl. The alleged incidents date to 2000, three years after he was hired by the department.