The lawyer for a man going to trial Monday on allegations he raped a woman 1 1/2 years ago is asking a judge to prevent the victim from pointing the finger at his client.
Dan Arnold told a judge in Benton County Superior Court on Thursday that he's not saying the woman shouldn't be able to testify against Cody Joseph Kloepper, 33, but he questioned if she identified him based on a police suggestion.
"I can't think of a more unfair way to proceed," said Arnold, who is representing Kloepper on charges of first-degree rape, first-degree assault, first-degree burglary and the allegation that a deadly weapon was used in the December 2009 attack.
Kloepper was considered as a suspect in the early days of the investigation but, after viewing two photo montages with his picture in each one, the victim was adamant it was another man. That man was the main suspect until last summer, when prosecutors dismissed his case because DNA evidence cleared him.
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Kloepper was charged in November. His trial is expected to last a week.
Arnold claims his client was named as the suspect only after follow-up interviews between the victim and Richland police. He said the victim was 95 percent sure after the attack that it was this other man, and not Kloepper, because she said during the hour she was with the suspect she had time to memorize his facial features.
However, Deputy Prosecutor Terry Bloor argued that there is nothing to show that police ever prompted the victim to name Kloepper as the alleged perpetrator. He also pointed out that when the woman first called 911 after being attacked in her apartment, she told dispatchers that the man looked familiar and may have been an employee at The Villas at Meadow Springs, maybe even the maintenance man.
Bloor agreed with Arnold that the woman was certain in the beginning it was another suspect, but he said the victim was attacked so severely she had a head injury. He questioned how the court could not allow a victim to testify about her recollections, and said the weight of her credibility really should be left to the jury and not the judge.
"Telling her she can't testify is not a fair outcome," Bloor said. "The police here did nothing wrong."
Kloepper is accused of raping the woman Dec. 5, 2009, at her Richland apartment. He was a maintenance worker at the Gage Boulevard complex at the time, and prosecutors allege would have had keys to the woman's apartment.
After the chase against the initial suspect was dismissed, investigators learned that Kloepper's DNA could not be excluded as a match, court documents said. But Arnold also said that doesn't mean it actually is his client's DNA inside a bloody glove.
According to documents, Kloepper stayed overnight in a vacant unit at the apartment complex the night of the attack. The woman woke up at 4 a.m. to find a man in her apartment holding a metal bar.
Her injuries also included a broken right arm and left wrist.
Judge Carrie Runge won't rule on the admissibility of the witness identification until the trial begins, after she has time to review documents submitted by both sides.
Arnold has said the defense will be that another person committed the crime, not Kloepper.
One issue he plans to bring before the jury is his client's haircutting habits, and whether Kloepper's hair was cut before the attack or between that time and his interview with police, when a picture was taken for the photo montage. Arnold said Thursday that he needs "someone to testify about how fast hair grows."
Bloor also got Runge to sign a subpoena for The Villas to turn over records with Kloepper's work hours in December 2009 to see if they show when he may have left his job to get a haircut.
Runge also granted a defense request to have a designated barber go into the jail in the next few days so Kloepper can get a haircut before his trial starts.
Richland man faces trial in alleged sexual molest
A Richland man faces trial Sept. 26 for allegedly touching the bottom of a toddler in a bathing suit and following the girl around a Kennewick library.
Jeremy James Walker, 32, pleaded innocent Thursday to first-degree child molestation.
Prosecutors allege Walker took a picture of the girl with his cellphone before spying on her through book stacks at the Union Street branch of Mid-Columbia Libraries. He was arrested July 26 after witnesses reported his suspicious behavior to Kennewick police.
The toddler was with her two younger sisters and father at the library after walking over from the nearby spray park.
Kennewick police reportedly watched video taken inside the building that shows Walker following the family around the library and into the bathroom, court documents said. A witness saw him touch the girl several times with his hand as she got up from a chair, documents said.
Walker is in the Benton County jail on $20,000 bail.