Postponing sentencing once again, a Santa Barbara judge moved to hold an evidentiary hearing yesterday to decide whether or not former UCSB soccer player Eric Frimpong deserves a retrial.

Frimpong, who was convicted of felony rape on Dec. 17, faces three to eight years in prison if the motion for retrial is denied. Judge Brian Hill, who presided over Frimpong’s original trial, decided to allow the defense, led by attorney Robert M. Sanger, to make its case for retrial yesterday. The evidentiary hearing is not expected to last for more than a few days.

The hearing will also focus on the testimony of expert witnesses, as well as the possible testimony of a juror from the original trial, as the defense attempts to prove that Frimpong was not afforded a fair trial.

Hill opened yesterday’s hearing by addressing both the council and those in attendance, stating that while he felt the original trial was a fair one, criticism of the criminal justice system is both welcome and necessary.

“The ultimate goal is to provide a fair case for both sides,” Hill said. “Some feel it wasn’t a fair trial, so we’ll get to the bottom of this. If it turns out it wasn’t, we’ll have a new trial.”

Although he conceded the need for a hearing, Hill stood by the decision reached by the jury last December.

“In my 27 years in practice, I have not seen a rape case with so much incriminating and powerful evidence,” Hill said.

Ultimately, it is Hill’s decision whether or not to grant the motion.

In the past two months, the defense made public a number of grievances it had with the original trial. Among these include controversy concerning expert testimony regarding a bite mark found on the victim’s face, law enforcement’s alleged targeting of Frimpong as the only possible suspect and the DUI arrest of a juror during the course of the trial.

Sanger claimed that officers involved in the case did not make a thorough investigation or look at the possibility of suspects, including the victim’s on-again off-again boyfriend, Benjamin Randall.

“Anyone looking at the case from a law enforcement perspective should have looked at Randall as a suspect,” Sanger said. “When [his] DNA came back in the panties [of the victim], you should have looked at him as a suspect right then. Law enforcement had tunnel vision.”

The victim’s DNA was found on Frimpong’s genitals, yet his DNA was not found on the victim. The only other DNA found was Randall’s DNA on the victim’s panties. The victim testified in December that Randall had consensual intercourse with her three days prior to the attack, and a DNA expert had claimed during a previous hearing that DNA can remain present for as long as a week.

Yesterday’s sole testimony was provided by dental expert Dr. Charles Bowers. Bowers, who was hired by the defense, testified that his analysis of the bite mark effectively ruled out Frimpong.

Bowers’ assertion contradicted that of Dr. Norman Sperber, a dental expert who testified for the prosecution in December. Sperber concluded that the bite mark evidence was inconclusive – meaning it neither ruled out nor incriminated Frimpong. This conclusion is supported by two other dental experts.

Bowers said he believed the bite mark was orientated upside-down in relation to the victim’s face and that the rapist and the victim were not face-to-face during the assault – something that would contradict the victim’s original testimony.

During his presentation, Bowers said Randall’s dental structure – shown to the court on transparencies, and laid over images of the victim’s bruise – was a better match than Frimpong’s. Key to Bowers’ claim is the existence of a slightly set back tooth mark in the bruise, which matched Randall’s lower teeth curvature.

However, prosecuting attorney Mary Barron said the other three dental experts involved in the case, all of whom were present in the court room, not only disagreed with Bowers’ assessment of evidence but also possessed more experience dealing with bite mark evidence. According to his testimony, Bowers has offered testimony concerning bite mark evidence in 16 criminal trials over the last nine years. Sperber, the prosecution’s expert, has testified in over 100 cases, Barron said.

Bowers was scheduled to testify in the original trial, but became seriously ill the day before his testimony and was unable to show at the trial. He did not recover enough to complete his analysis of the evidence until after Frimpong was found guilty.

Sanger said that he did not accuse Randall during the original trial because there was not sufficient evidence at the time.

Hill, however, said the defense’s inability to procure the necessary evidence prior to the trial was its own fault. With nine months spanning the time between Frimpong’s arrest and the beginning of the trial, Hill said the defense had ample time to put together its case.

To this, Sanger responded that it is not the responsibility of the defense to search all possible leads. The people and law enforcement were allegedly at fault, Sanger said.

Barron said the prosecution did not obtain molds of Randall’s teeth until after the trial had started.

“As the trial went on, the defense’s tactical decision to attack Randall forced us to either confirm or deny him as a suspect,” Barron said. “There was no reason before that to suspect that the consensual partner of the victim raped her.”