WALLA WALLA — A Walla Walla nurse convicted of a 2016 rape — twice — has asked for a third trial.
Jacob N. Cox, 38, was convicted March 8, 2023, of second-degree rape of a woman at a birthday party.
Before that, his 2019 conviction of the same crime was vacated by the Washington Court of Appeals Division III, which ruled that the defense was not allowed to make several arguments during the first trial that it should have been allowed to make.
Now, his sentencing hearing — which had been set for Monday, April 17 — has been postponed after Cox asked Walla Walla County Superior Court Judge Brandon L. Johnson, the trial judge at his second trial, to vacate his conviction, again arguing that his trial was unfair.
Cox’s attorney, William McCool, filed the motion on March 20, 12 days after his client was convicted. The state filed a response, and the two sides have since traded responses in court filings.
McCool said communications with the jurors after the trial indicate that one or more of the jurors might not have been convinced that some of the elements of second-degree rape were proven by the state.
In fact, at least one juror provided the court with a statement verifying that.
Despite this, all 12 jurors did declare under oath that they were convinced, beyond a reasonable doubt, that Cox committed the crime as charged.
In a court document in response to McCool’s argument, Walla County Deputy Prosecuting Attorney Kelly Stevenson said this is not enough to grant a new trial.
She cited a past Washington case in which a juror called the court from the parking lot after a verdict to say she was not comfortable with the verdict.
Though the trial court in that matter granted a new trial, the appeals court reinstated the guilty verdict, citing a Washington Supreme Court decision that a jury can’t undo its own verdict.
In that ruling, the state’s high court wrote, “The rule is of universal acceptance that jurymen will not be permitted to impeach their own verdict, and thus declare their own perjury, for one oath would but offset the other.”
The Supreme Court also said that allowing the jury to argue against its own verdict would encourage jury tampering after the jury is dismissed.
In fact, according to court documents, Cox’s wife, Sidney Cox, did contact jurors to urge them to contact McCool regarding the case.
Stevenson, in her argument, asked Johnson to reject Cox’s argument.
“Following retrial and a second conviction, the defendant is simply dissatisfied with the result, and has engaged in harassment of jurors in order to get yet another chance at acquittal,” Stevenson wrote.
McCool also argued that Johnson commenting on the validity of McCool’s objections during the trial undermined him in front of the jury and prejudiced the jury against him.
During the prosecution’s closing arguments, McCool objected several times while Walla Walla County Deputy Prosecuting Attorney Michelle Mulhern was making her argument, often nitpicking definitions of Mulhern’s words.
For example, Mulhern mentioned the length of the victim’s “skirt” in her argument.
McCool objected, not to Mulhern’s description of the length, but to the word “skirt.” He said there was no testimony that the victim was in a skirt, saying it was instead a “dress.”
After multiple similar objections by McCool, Johnson told McCool to stop making “unnecessary objections.”
McCool took exception to this in his post-trial motion.
“The Court’s comment to defense counsel indicating that he ‘needed to stop making unnecessary objections’ created an implication for the jury that the defense counsel could not be trusted because he was making unnecessary objections,” McCool wrote.
McCool said this stopped him from providing effective counsel, which in turn violated Cox’s Sixth Amendment right to effective assistance.
McCool also said rulings by Johnson that he couldn’t use “scales of justice” or Bible verses in his closing arguments denied Cox a fair trial.
The state’s most recent written response to the court was on Tuesday, April 18. McCool’s was Friday, April 21.
According to court documents, the case’s next court hearing is scheduled for Thursday, May 18.
If Johnson declines to grant Cox a new trial, Cox can again appeal to the Washington State Court of Appeals.
