Walla Walla County Courthouse

WALLA WALLA — A retrial is underway for a Walla Walla man who was granted a second trial by the Washington Court of Appeals after originally being convicted of second-degree rape in 2019.

Jury selection began Wednesday, Feb. 22, for Jacob N. Cox, 38, who is accused of raping a woman in June 2016 and is charged with second-degree rape of someone incapable of consent. He was originally sentenced to seven years in prison.

Cox is accused of raping the woman after she fell asleep in a bed with Cox and Cox’s fiance after a party. The victim reported she woke up to find Cox sexually assaulting her.

Cox has maintained his innocence throughout the case and during the sentencing hearing after his first trial.

Before sentencing, Cox’s attorney, William McCool, asked the trial judge, then Walla Walla County Superior Court Judge John Lohrmann, to grant his client a new trial.

After Lohrmann denied the request, Cox filed an appeal.

The appeal was argued on Cox’s behalf by Seattle-based appeals attorney Lenell Nussbaum.

During the investigation, the state crime lab found Cox’s DNA on the woman’s underwear, according to court records.

The appeals court’s decision states the trial court did not allow Cox to present evidence that the victim was flirtatious with the defendant and others during the party, or its theory on how his DNA could have ended up on the victim’s underwear.

The appeals court said that was the wrong decision.

“On Appeal, Mr. Cox argues that the Rape Shield Statute does not apply to the flirtatious evidence that he proffered at trial because it does not qualify as ‘past sexual behavior,’” the court wrote in its opinion. “We agree.”

Cox’s retrial began with its own oddity. The elevator at the Walla Walla County Courthouse is out of service, so jury selection is occurring at the Walla Walla County commissioners’ meeting room across the street. Walla Walla County Superior Court Judge Brandon L. Johnson is presiding over the retrial.