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Request for new trial in Josue Fraga case is granted

WORTHINGTON -- Josue Fraga has been in prison for three years, which is one year longer than his niece's life lasted. Samantha was murdered in March 2008, and Fraga was convicted for her death in May 2009.

Now, with a petition for post-conviction relief, an order for a new trial has been granted by Senior Judge Timothy Connell, based on evidence discovered after a jury found Fraga guilty of first-degree murder and sentenced him to life in prison. His defense attorneys tried to cast blame on Fraga's then 13-year-old son, who denied during testimony ever touching the child sexually. Later, the teen admitted he had fondled her several times, but denied ever penetrating her.

Last year, prosecuting attorney Bill Klumpp of the Minnesota Attorney General's Office stated during an evidentiary hearing there was a witness to Samantha's assault.

Fraga's daughter said her father, who had been sexually assaulting her since she was 6 years old, had duct-taped her to a chair when she refused his advances that night. As she watched, the girl said, her father started drowning Samantha in the toilet and then the bathtub like "he usually did." She said she could still hear her little cousin struggling in the water when her father removed the tape and sent her to the room she shared with her three siblings and two cousins.

It was more than four years ago that 2-year-old Samantha was brought to the emergency room by her aunt and uncle. Her hair was slightly damp, her body was limp, and her core temperature indicated she had been dead for several hours. An autopsy would later show the toddler had traumatic head injuries, a ruptured stomach, severe contusions all over her body and had been penetrated vaginally and anally. From all indications, the child died a horrific death. Her external sex organs were traumatized, she suffered peritonitis and had extensive hemorrhaging in her head.

Fraga has denied hurting the child from the time of his arrest, stating at his sentencing he loved his brother's kids like they were his own. During the four-day trial, his attorneys made subtle allegations toward the 13-year-old boy several times, but one state witness, a physician, said the penis of a young teen would not have been capable of creating the extensive damage found on Samantha's body at the time of her death.

After the evidentiary hearing, Connell gave both the state and defense attorneys time to submit briefs on the day's testimony and the legal arguments. He stated at the time an order on the motion would not be likely until spring.

The defense's request centered on a three-prong test based on case law from Larrison versus United States, which is used in Minnesota when dealing with recanted, perjured or false testimony -- in this case, the testimony of the teenaged boy, who denied and then later admitted to touching the genitals of the victim.

The Larrison test contains three elements: That the court be reasonably satisfied the trial testimony was false; that the defendant did not know of the falsity until after the trial; and that without the false testimony, the jury might have reached a different conclusion. The first two elements, Connell found, were proven, but the third was "more difficult and less clear."

"As the State correctly observes, (Fraga) is relying exclusively on a one-word answer to an eight-word question to overturn the conviction," Connell wrote.

The difficulty, he states, lies in the overall impact of the question and the false response. The only suspects were Fraga and his son, and the defense tried to establish reasonable doubt by casting suspicion toward his son. His ability to offer the defense was impeded in some degree by the teenager's denial under oath that he had ever had sexual contact with Samantha.

"This was false testimony. Had the child testified truthfully, one can only surmise what questions, cross-examination, additional testimony and witnesses, and subsequent arguments would have ensued," Connell states. "So while the question and answer are minor in quantity, they are substantial in content and impact."

The information, coupled with physical evidence such as the teen's sperm found on the victim's clothing and his conduct the following morning, could make the boy a more likely suspect or create reasonable doubt regarding Fraga's culpability, the judge wrote. Ultimately, those would be questions for a jury to decide.

One can only guess as to if the jury's decision would have been different without the false testimony, according to Connell, and with a sentence of life without parole, a guess is not sufficient.

The decision regarding a new trial cannot be impacted by the possibility of new and incriminating evidence to be potentially offered by the daughter, he states. The evidence, if believed, may result in a conviction, but does not impact the decision to afford Fraga a new trial.

"It will be the duty of a second jury panel, presented with and weighing all evidence and truthful testimony, to arrive at an appropriate verdict," Connell wrote.

Klumpp could not be reached and his office refused to comment on what will happen next in the case. It is likely the state will appeal Connell's decision, but a timeline of the events to follow are unknown. If the case does indeed go back to trial, a change of venue is also likely.

Daily Globe Reporter Justine Wettscbreck may be reached at 376-7322.