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Albert Curry

Other Federal Exonerations with Misconduct
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On August 5, 2001, a 24-year-old woman reported to police that she had been sexually assaulted the night before by 41-year-old Albert Curry during a party in Kyle, South Dakota.

The woman, S.O., said she had no memory of the assault because she passed out from drinking alcohol, but that Curry had been making sexual advances toward her during the party.

S.O.’s sister, L.S., said she came into the bedroom and found Curry pulling up his pants. A rape kit was taken and DNA tests identified Curry as the source of the semen.

In November 2001, Curry was indicted by a federal grand jury on a charge of sexual assault. The case was prosecuted in federal court because the incident occurred on the Pine Ridge Agency, a Native American reservation.

Curry went to trial U.S. District Court in March 2002. S.O. testified that Curry made sexual advances during the party and that she went to bed, passed out and had no memory of what happened.

S.O.’s sister testified that she went to check on S.O. and discovered Curry pulling up his pants. She said S.O. did not speak.

An FBI agent who had taken statements from S.O. and L.S. inadvertently disclosed during his testimony that he had a prepared a “memorandum of interview” based on his interview of L.S. Curry’s lawyer objected, saying he had not received the memo and asked for a mistrial due to the prosecution’s failure to disclose the memo.

Judge Karen Schreier took the motion for mistrial under advisement and ordered the trial to continue. The judge did not order the prosecution to turn over the memo.

Curry testified in his own defense. He told the jury that he and S.O. had been partying most of the day and evening and that S.O. encouraged and consented to the sexual encounter.

On March 7, 2002, the jury convicted Curry of one count of sexual assault. Prior to sentencing, the judge reviewed the memo and discovered that L.S. had told the agent prior to trial that when she came into the bedroom, S.O. sat up, grabbed her blanket and asked L.S., “What are you doing?”

The defense filed a motion renewing the request for a mistrial and to vacate Curry’s conviction based on the failure of the prosecution to disclose the memo because it contained a statement from L.S. that contradicted her trial testimony and could have been used to impeach her.

On May 31, 2002, Judge Schreier granted the motion for a mistrial and vacated Curry’s conviction. Noting that the prosecution’s evidence was “not overwhelming,” Judge Schreier ruled that he had received an unfair trial due to the failure of the prosecution to disclose the memo. She also ruled that the prosecutor, during closing arguments, improperly injected his personal opinion on Curry’s credibility and improperly appealed to the sympathy of the women jurors.

Before a retrial commenced, the defense then asked that the case be dismissed on the ground that the prosecution had intentionally made improper closing arguments to provoke a mistrial because the prosecutor knew that the memo was favorable to the defense and should have been disclosed. The defense claimed that a second trial would violate Curry’s constitutional protection against double jeopardy.

Judge Schreier denied that motion and the defense appealed. In May 2003, the Eighth Circuit U.S. Court of Appeals upheld Judge Schreier’s ruling and noted that at a retrial Curry would “have the opportunity to impeach (L.S.) with her prior statements.”

On August 19, 2003, Curry went to trial a second time. On August 23, 2003, the jury acquitted him.

– Maurice Possley

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Posting Date:  Before June 2012
Last Updated: 4/30/2018
State:Fed-SD
County:
Most Serious Crime:Sexual Assault
Additional Convictions:
Reported Crime Date:2001
Convicted:2002
Exonerated:2003
Sentence:Not sentenced
Race:Black
Sex:Male
Age at the date of crime:41
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No