A 12-person jury could not reach a unanimous decision this week in a sexual assault trial, the latest twist in a gang rape case that also resulted in an overturned conviction.
Six men and six women said Tuesday they were deadlocked after the weeklong trial of Devin Bond, a 22-year-old Durango man who police and prosecutors said sexually assaulted a woman at gunpoint.
District Court Judge William Herringer declared a mistrial around 3 p.m. Tuesday after jurors sent him a letter saying they were “hopelessly deadlocked,” he said. Jurors had been deliberating since about noon Monday. Several jurors declined to comment Tuesday as they left the La Plata County Courthouse.
Bond, who did not testify in his own defense, showed no obvious reaction to Tuesday’s mistrial ruling. A hung jury essentially sends the 2017 case back to square one.
Bond is scheduled to appear Friday morning in Herringer’s courtroom for a hearing to set another court date. Deputy District Attorney Sean Murray said prosecutors hope to have a decision by the end of the week about whether they plan to retry the case.
Bond is accused of sexually assaulting a woman on the night of Oct. 14, 2017, with two other co-defendants, James Zink and Anthony Fitts.
Bond’s Durango defense lawyers Brian Schowalter and Katie Whitney maintained in closing arguments Monday that Bond had consensual sex with the woman and that her story of what happened on the night in question has not been consistent.
“(The woman’s) story is totally off the rails,” Whitney told jurors. “It changes as we go.”
The woman initially told investigators all three men were strangers that “gang raped” her at gunpoint, Whitney said. But in subsequent interviews with authorities, Whitney said it came to light that the woman knew the men and had engaged in consensual sex.
Fitts, who previously pleaded guilty and was sentenced to six years in prison, had his conviction overturned last week after the woman testified at Bond’s trial that the sex between her and Fitts was consensual.
But Murray said the sex was no longer consensual once Zink threatened the woman with a gun. At this point in the night, authorities say Fitts was no longer in the car.
Zink ordered the woman to perform sexual acts or be shot, Murray said.
“If this was consensual sex, why the gun?” he told jurors.
Zink, who pleaded guilty, received 14 years in prison and 10 years of probation.
Bond told investigators a shotgun was in the car, and that Zink racked it. But Bond’s attorneys say there was no serious threat of shooting her. Prosecutors, however, said it’s clear the woman feared for her life.
“You can’t threaten someone with a gun in exchange for sexual acts and claim it was consensual,” Murray said. “That doesn’t make any sense.”
Whitney criticized investigators with the Durango Police Department for “willful ignorance” for not thoroughly vetting the woman’s account of what happened that evening, calling it a “big, sensationalized” story. Whitney said the woman made up the story to get herself out of trouble.
“This is a show, folks,” she said.
In the prosecution’s rebuttal, Deputy District Attorney Jessica Kiel called Whitney’s statements a form of “victim blaming.” Kiel said the woman was traumatized, and as she was more open to talking about the incident, more facts came to light.
Kiel said that both Bond and the woman’s story lined up on the two most important details of the case – a shotgun was brought out and racked, and that sex continued after Zink threatened her.
“Consent stopped when that gun came out,” Kiel said. “She’s hoping she doesn’t die that night.”
bhauff@durangoherald.com and jromeo@durangoherald.com
