Dusterhoft said later that such twists are common when Hmong witnesses face defendants in court. "Some of the perpetrators can be related to some of the victims or to the witnesses, and so there's some pressure ... when it comes to testifying," Dusterhoft said.
Thao's memory hadn't improved by April, when a third defendant, Cha Xiong, now 22, went on trial for aiding and abetting the rape. Cha Xiong's lawyer, Mark Todd, prepared the jurors for Thao in his opening statement by asking rhetorically what he would say about his client. Then he answered his own question: "That is going to be hard to predict because he has said so many things already."
Bee Yang, another gang member, also flip-flopped. Sensing the lawyers' growing frustration, Yang volunteered: "For some reason, I always say yes. I don't know why."
Dusterhoft threw up his hands in exasperation and briefly slumped over a table. Moments later, after District Judge Edward Cleary released the jurors for the afternoon recess, Cha Xiong's attorney said sympathetically to Dusterhoft: "He just says yes to everything. What the heck!"
The victim is potentially the best witness in a rape case. But in these cases, the victims are so young and fragile that prosecutors try to avoid having them testify. In this case, Dusterhoft noted, the victim was just 12, had been drinking, and faded in and out of consciousness as strangers raped her in the dark.
After the assaults, the girl picked out a picture of Bee Chue Chang and said he had assaulted her. But in the picture he had longer hair, dyed reddish-orange. About a year later, at the trial, he had black hair cropped military style. She failed to identify him in person.
She did recognize co-defendant Blong Xiong, known as "Biggie," as someone who had been at the house where she was raped. In court, though, she didn't accuse him of assaulting her.
The girl's testimony highlighted uncertainties in the case. It's not unusual for young victims to make mistakes or to forget details of a crime, especially when they were intoxicated and when they fear being disowned by their families, Dusterhoft said.
In this case, the girl said the attacks started after she had gone to sleep and awoke naked in the dark, with Lor on top of her. She said she struggled, "then I somehow went unconscious."
Some other men and teens at the party piled into the room to rape her. When she came around and resisted, someone would cover her face so she would gasp for air, Lor testified.
"She was screaming," Lor said. "You could say she was trying to get away."
At the first trial, the girl said about five men had intercourse with her and 10 to 15 forced her to perform oral sex. She acknowledged that she wasn't certain of the total.
Making sense of it
"She was not the best reporter of that assault because people were coming in as the assault commences," Dusterhoft told jurors at the first trial. "She wasn't paying attention to their faces."
Jurors had to decide that case with little more than DNA evidence implicating Blong Xiong, the testimony of Lor -- who had cut a deal -- and the girl's confused testimony.
The girl, now 15, appeared more confident in the second trial. She entered the room with her head up, wearing a green and white Michigan sweatshirt and dramatic hoop earrings. She spoke clearly and looked jurors in the eye. But jurors in the trial of Cha Xiong had no DNA evidence to rely on. "There is no physical evidence linking Mr. Xiong to this assault," his attorney said flatly.
In the end, Blong Xiong was the only one of the three defendants to be convicted. Jurors found him guilty of rape and of committing the crime for the benefit of a gang. He insisted he was innocent. Judge Paulette Flynn sentenced him to 13 years in prison.
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