Care home worker tried for rape

Prosecutors say Larry Sumala, 34, assaulted the woman in November 2008 and based on a medical examination and photo lineup charged him with having sex with an institutionalized person, sodomy and oral copulation.

But defense attorney Mara Feiger said there is no physical evidence aside from the exam which can be explained away. She also said the woman’s limited mental capacity leaves her likely to point to somebody in a photo lineup in response to questions ranging from "Who hurt you?” to "Who created the theory of relativity?”

The woman speaks in guttural sounds, is hard of hearing and is mentally retarded, according to prosecutors.

The question of the woman’s abilities is the center of hearings this week to determine if she can testify in Sumala’s jury trial. Feiger and prosecutor Jennie Ow spent Tuesday presenting their arguments and posing questions to the woman to show if she can tell the difference between right and wrong and indicate what happened. Judge Elizabeth Lee will hand down a decision Thursday.

Without the woman taking the stand, the case cannot go forward, said Chief Deputy District Attorney Steve Wagstaffe.

"We understand this is not an easy call,” Wagstaffe said.

Feiger believes the case should have never been filed, deeming it as "flimsy as a piece of old lawn furniture left out season after season.” She said Sumala, who has been in custody in lieu of $250,000 bail since his arrest and charging in June 2009, was known to the woman but never had care for her hygiene and was never alone with her. He had a half-hour window of opportunity during which he was seen working on a computer, Feiger said.

Wagstaffe declined to discuss the specifics of the case while it is in trial.

Feiger said her client was identified as the suspect only on the basis of the photo lineup and an examination that turned up a slight tear and a urinary tract infection. The tear, Feiger said, can be explained be either constipation or a suppository that was regularly administered.

Feiger also said the woman pushes away anyone doing something to her she doesn’t want and cites her client’s refusal of a plea offer for time served and no sex offender registration as proof of his innocence.

But while Fieger believes the case itself is weak, the question before the court now is whether the woman can serve as a witness.

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 102.