A South Central District judge has granted a new trial to a Mandan man whose 2019 conviction for raping a Lyft customer was upheld by the North Dakota Supreme Court.
Judge Bobbi Weiler in an order filed Wednesday said Corey Wickham’s constitutional rights were violated when his defense attorney failed to object to police testimony that later impacted the jury’s decision.
Wickham, now 42, was working as a Lyft driver in August 2018 when he was accused of raping a woman after driving her home. A jury in January 2019 convicted him of two sexual assault felonies, one of which carried the possibility of life in prison without parole. He was sentenced to 20 years in prison.
The North Dakota Supreme Court in January 2020 upheld the conviction. Wickham at that time argued the district court erred by admitting testimony from five witnesses without requiring the prosecution to qualify them as experts.
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Weiler’s order for a new trial was issued after Bismarck attorney Lloyd Suhr filed an application for post-conviction relief on Wickham’s behalf. Post-conviction relief is a tactic commonly used after a defendant loses a direct appeal.
Suhr argued that a Bismarck police detective’s testimony about Wickham’s request for an attorney was an improper comment that should have drawn an objection from defense counsel. Additionally, the jury after several hours of deliberation at Wickham’s trial was deadlocked and asked for the detective’s testimony to be read back to them. Less than an hour after hearing the testimony for the second time, the jury returned a guilty verdict. Wickham’s attorney at the time, James Loraas, did not object either time.
“By failure to object, Loraas did not allow the District Judge the ability to review the issue and, perhaps most importantly, did not preserve the issue for appeal,” Weiler wrote.
Weiler disagreed with Suhr’s arguments that Loraas failed to provide Wickham with discovery information; that a text message exchange between the woman and a friend that was not introduced as evidence could have changed the outcome of the trial; and that the defense should have moved to introduce evidence that another man’s DNA was found in the woman’s clothing. Loraas at the post-trial hearing testified that the decisions about evidence were part of his strategy, which Weiler in her order said she did not find unreasonable.
Loraas also testified that he sent Wickham letters about discovery and provided him with discovery information as the trial progressed. Weiler said she found Loraas’ testimony on that matter to be more credible than Wickham’s.
The issue of the detective’s testimony being heard twice carried significant weight in the post-trial petition, Suhr said in an interview.
“There’s a reasonable probability that reference could have affected the way the jury looked at it,” he said.
Suhr said that in his 20 years as an attorney he has seen only a handful of cases in which post-conviction relief was granted. A judge seldom agrees with every issued raised.
“You don’t want to waive an argument by not making it,” Suhr said. “When I got the ruling back I was glad to see the result.”
It’s unclear if Suhr will represent Wickham at the new trial. No trial date is listed in court documents.
Loraas did not immediately respond to an email request seeking comment.
Wickham is in custody at the Burleigh Morton Detention Center in lieu of $500,000 bail.