Court upholds new trial order in 'third-strike' rape case

YAKIMA -- The state Court of Appeals has sided with a Yakima County judge who ordered a new trial for a rape defendant facing a life sentence without parole under Washington's three-strikes law.

In a ruling issued Thursday, the Appeals Court said Superior Court Judge Blaine Gibson was correct in ordering a new trial for Jose Luis Hernandez based on new evidence that undermined his accuser's credibility.

Prosecutors have 30 days to decide whether to appeal the ruling to the state Supreme Court. Deputy prosecutor Kevin Eilmes said he has not decided yet whether to seek such a review, which are rarely granted by the high court.

If they don't appeal, prosecutors must then decide whether to seek a new trial for Hernandez.

Because of two earlier felony convictions, Hernandez faced an automatic sentence of life in prison without parole after a jury in April 2006 convicted him of two counts of second-degree rape as well as one count each of felony harassment and forgery.

The case involved an 18-year-old Oregon woman who told a jury she was held against her will and repeatedly raped by Hernandez at a house on North Sixth Avenue in Yakima.

Hernandez, 34, denied the allegations and told the jury the relationship had been consensual. The two met at a restaurant in Eugene, Ore., where the woman worked as a waitress and Hernandez was a regular customer.

Gibson's decision to void the conviction stemmed from a post-trial defense motion that argued phone records in the case suggested the woman initiated more than 100 calls to Hernandez and had lied about the nature of the relationship.

The appeals court ruled that Gibson did not abuse his authority to grant a new trial, describing the phone records as "material evidence that could easily have affected the outcome of the trial."

The rape case qualified as a third strike because Hernandez had two felony assault convictions dating to the early 1990s.

According to court records, Hernandez was deported after the assault convictions but then returned illegally to the United States, where he has been living since he was a teenager.

Court records also show Hernandez had a burglary conviction in 1999, but it was unclear why that did not trigger a new deportation.

Police said Hernandez has used more than a dozen aliases and, at the time of his arrest in the rape case, was using a falsified Washington driver's license.

Lorie Dankers, a spokeswoman for federal Immigration and Customs Enforcement, said Hernandez will be deported again regardless of the outcome of his rape case.

"We're well aware of him," she said of Hernandez, who remains in custody at the Yakima County jail on a federal no-bail detainer.

* Chris Bristol can be reached at 577-7748 or cbristol@yakimaherald.com.