By Michael Copley
Staff Writer
mcopley@powhatantoday.com

A judge in Powhatan County today ruled that defense lawyers for three men charged with rape may use public funds to hire a forensic toxicologist to evaluate the alleged victim’s probable degree of intoxication on the night the assault reportedly occurred. A separate motion that sought to compel prosecutors to hand over a recorded interview between the complainant and investigators was denied.

Defense lawyer Reed C. Amos, who represents 20-year-old Andre L. Jackson, argued the recording amounts to impeachment evidence that ought to be turned over during the discovery phase. He said statements the complainant reportedly made to the investigator during an interview two days after the alleged assault are inconsistent with accounts she provided at other times. Defense lawyers were provided a summary of the interview.

The defendants – Andre Jackson, 21-year-old Henry Adam Page Jr. and 23-year-old Etholian E.M. Barnes – are accused of having sex with the woman at a party wile she was either asleep or too intoxicated to provide consent, according to Powhatan Commonwealth’s Attorney Robert Beasley.

Amos said discrepancies in the complainant’s statements include where she passed out during the party and whether or not she was wearing underwear. Amos insists the recording is “paramount” to his client’s case: “Everything turns and falls on her [the complainant’s] statements and credibility,” he said. “This is a rape case. Her actual words are important.”

“They’re not entitled to what they’re asking for,” Powhatan Assistant Commonwealth’s Attorney Richard Cox said, insisting that because the complainant is also a witness, the defense doesn’t have a right to the recording under the rules of discovery.

Circuit Judge James F. D’Alton Jr. agreed: “The rules of discovery don’t make everything impeachable,” he said, adding, “You’re not entitled to cross examine the witness before trial.”

Each of the defendants told investigators that sex with the alleged victim was consensual, according to Lieutenant Kevin Wolfe, who testified during a preliminary hearing. 

The alleged victim also testified and described a night of heavy drinking at a house party in the 2600 block of Maidens Road that lasted into the morning of Sept. 26. The woman said she blacked out at approximately 5 a.m. and maintained that she did not engage in consensual sex prior to that.

Cox said the woman woke up Sept. 26 in a bedroom without pants on; condom wrappers were found in the room and the woman’s friends, who were at the party, told her three men had sex with her.

According to a warrant filed in Powhatan Circuit Court, authorities searched the home on Maidens Rd. for ply marks on a bedroom door and a knife matching the ply marks.

Ronald M. Gore Jr., Barnes’ lawyer, argued during the preliminary hearing that the alleged victim’s inability to recall sexual intercourse doesn’t guarantee consent wasn’t given.

Page and Millhouse-Barnes were working at the Powhatan County Fair on the weekend of the alleged rape, according to Wolfe. Both men were arrested Sept. 26 at the fair grounds; Jackson was arrested Sept. 27. In 2009, Page was convicted in Henrico County of having sex with a minor who was between 13 and 15 years old.

In approving up to $1,000 in public funding for the defense’s forensic toxicologist, D’Alton said such an evaluation “seems to be the linchpin in the case” and would probably benefit both defense lawyers and the prosecutor.

The case is set for trial June 14.