Mistrial declared in USC student rape case

A Richland County jury deadlocked late Wednesday night after deliberating more than nine hours on the case of a University of South Carolina student who said she was raped after walking from Five Points back to her apartment last January.

Judge Robert Hood, who had allowed the jury to hear various witness testimony replayed to them during deliberations, declared the mistrial about 10:40 p.m. Wednesday.

The charges of rape and kidnapping against Carlos Hernandez, 23, a Mexican immigrant here on a longterm visa who lives in Batesburg-Leesville, will stand. Hernandez was taken back to the Alvin S. Glenn Detention Center where he has been held since his arrest last February.

Following the deadlock announcement, prosecutors said they will be considering their next step but had nothing definite to say at this time.

Ryan Schwartz, one of Hernandez's defense attorneys, said he fully expected the prosecution to try Hernandez again.

"It was a he-said, she said situation, and those type cases are difficult for a jury to believe," Schwartz said.

The jury got the case at about 1 p.m.

Before the members began deliberating, Judge Robert Hood told them, “This case is very important to both sides. This is their only day in court.”

Earlier Wednesday, the jury of eight men and four women heard closing arguments from 5th Circuit assistant prosecutors Margaret Bodman and Carter Potts as well as from defense attorney Aimee Zmroczek.

The two sides agreed on one thing: There was sex in a dark alley between the student and Hernandez, who had never met before their chance encounter on a dark street near the USC Capstone dormitory around 3 a.m. that January morning. The sex took place within minutes of their meeting.

The defense, citing Hernandez’s testimony Tuesday on the witness stand, contends that after talking for a few minutes on the street, the alleged victim began passionately kissing Hernandez and led him into an alley beside the apartment where she lived with two roommates. There, they had consensual sex, Hernandez testified.

But the prosecution’s case, supported by about 20 law enforcement, civilian and medical witnesses, as well as video from Five Points area surveillance cameras, is that Hernandez followed the victim and a friend from Five Points and after the friend went inside an apartment building, he pressed something hard in the victim’s back. Then he told her he had a gun and would shoot her if she didn’t go into the alley and take off her clothes, the victim testified Monday.

“She’s only going there because she believes he has a gun,” Bodman told the jury, emphasizing that Hernandez made her believe he had a gun, which constitutes forcible rape.

Even though there were no eyewitnesses to the incident, Bodman said, that shouldn’t stop the jury from regarding the rest of the evidence as irrefutable proof. “Rape is a secretive crime. The rapist decides when and where it will happen, and they don’t want any witnesses.”

Bodman also told the jury Hernandez’s DNA taken from the victim’s body and video camera evidence were irrefutable evidence, thanks to modern advances in science and technology.

“If we were trying this case 25 years ago, there is no doubt this (prosecution) would be more difficult,” Bodman told the jury. “Find him (Hernandez) guilty, and do not let him get away.”

Zmroczek argued to the jury that the whole matter was just a casual, consensual “hookup” that the victim regretted. “Regret is not rape,” Zmroczek said. “Our ‘victim’ was embarrassed, so she made up the story.”

After it was over, the victim was so embarrassed, she decided to say the matter was a rape, Zmroczek said, stressing that the victim by her own testimony earlier in the trial had admitted she had been drinking.

Evidence in the trial showed that the victim had consumed a half-dozen drinks in the hours before the encounter. Hernandez, too, admitted to having half-dozen drinks before the incident.

Zmroczek used the victim’s drinking to stress she caused the incident. “When you drink, your blood alcohol gets higher, your social inhibitions get lowered, your judgment gets impaired.”

The State does not name victims in cases involving allegations of sexual assault.

Hernandez, who was born in Mexico but moved here with his family as a child, faces deportation if convicted. He would first serve any prison sentence in a South Carolina prison.

Hernandez took the stand Tuesday in his own defense, testifying that the sex was consensual.

Potts reviewed prosecution witnesses’ testimony, reminding the jury that the victim had run into the apartment hysterical, disheveled, nearly naked, and her sock was found in the alley where the incident took place.

“This was a girls’ night out, not a trolling for guys, just hanging out with friends,” Potts told the jury. “The worst she should have expected to have after that night was a hangover. Instead, it turned into a night of terror and anxiety that has lasted for months. ... This is not a ‘he said, she said.’ This is a stranger rape.”

Like Bodman, Potts mentioned the role of science, praising one of the victim’s friends who knew they should get to a hospital and have the victim checked by a medical professional with a rape kit – a package that contains the equipment to gather evidence after a rape.

“It’s unfortunate that in this day and age, that is what we teach people, unfortunate – but it’s right,” Potts said.

At the hospital, professionals took photographs of bruises on the victim and gathered DNA samples – evidence that underpinned the prosecution’s case and placed Hernandez indisputably at the scene of the incident.

What happened in this case “is one of the scariest things a person in our society can experience – a sexual assault in a dark alley by a stranger with a weapon,” Potts said. “It’s the stuff of nightmares.”

Hernandez, who lived in Batesburg-Leesville with his parents at the time of the incident, is on a visa that allows him to stay here as long as he doesn’t violate any laws, according to evidence in the case. The U.S. Immigration, Customs and Enforcement agency has placed a “hold” on Hernandez, who is being held at the Alvin S. Glenn Detention Center.

This story was originally published October 19, 2016 at 2:24 PM with the headline "Mistrial declared in USC student rape case."