Meanwhile, the wheels of justice were rolling slowly—for nearly a year, Driscoll was in limbo, unsure when or if he would be put on trial. Frustrated, he asked his half-brother Brian Buchanan, who sometimes worked as a private investigator, to assist in his defense. Driscoll remembered that he had installed security cameras to protect his property while he traveled for engineering jobs at other airports. He had his brother retrieve the tapes while he was in jail, and when he was released on house arrest he took them to his attorney's office and was shocked by what they contained. In one scene, as the group hangs out on one side of the driveway, a woman, who appears to be Driscoll's accuser, and who is hidden from view of the crowd by his boat, is clearly giving a hand job to a man later identified as Dennis Baker, a friend of the woman's who was with her at the Tumble Inn that night. Driscoll's brother tracked him down, and Baker admitted to the driveway hand play—and added that he'd had sex with the woman that same night in Driscoll's hot tub (she had told a nurse that prior to the alleged rape she'd last had sex, with her boyfriend, some days earlier). More important to Driscoll's defense, Baker also said he saw bruises on her in the hot tub, hours before Driscoll and his accuser got together. The tapes also blew a hole in the prosecution's time line, as they show the accuser leaving Driscoll's home more than an hour earlier than she claimed in her police report. Driscoll and his brother could scarcely contain their excitement—Coran believed the revelations would be enough to get the charges dismissed. But the state prosecutor, Jody Vaughan, was unimpressed and refused to drop the case. Vaughan, who has since been dismissed from the state prosecutor's office, did not respond to requests for comment.
Driscoll's trial started in November, and it began badly. Baker was allowed to testify only that he and the accuser had contact in the hot tub and that he'd seen bruises on her. The judge refused to allow any of the tapes or references to the woman's sex acts that night, citing rape shield laws, which prohibit complainants from being questioned about past sexual behavior. "That was the moment when I lost all hope," Driscoll says. "How could any human take this much evidence and throw it aside?" He didn't take the stand in his own defense. "He'd given a wonderful statement to the police," Coran says of that decision. "It was like controlled testimony. We thought the evidence was overwhelming." To counter the state's medical expert (a general practitioner who specialized in pediatrics), they brought in two forensic pathologists who both found that the bruising inside the accuser's vagina could have been consistent with consensual sex. They also testified that the yellowing bruises on her body were at least 48 hours old, and possibly 72 hours old or older. According to Driscoll, when it was his accuser's turn on the stand she often looked annoyed that she had to be there. Sometimes she cried, and occasionally she gave Driscoll a half-smile.
"It was like a dream," Driscoll says of the trial. "It gets to a point where no one can understand anything that's going on or any of the documents. It's just two lawyers putting on a show, and I'm sitting there going, 'I know the truth.' Every day I would go home and wait to go back and find out if I was not going to lose everything or if I was going to spend the rest of my life in prison."
He would have to wait some more. He didn't get a verdict. After three days of deliberation, the case ended in a mistrial because of a hung jury.
In May 2010, the prosecutor came to Driscoll, who was released from house arrest a month after the first trial, with a deal. Plead guilty to a reduced charge, sexual abuse in the second degree (a Class C felony), she offered, and he would have to register as a sex offender but would face no prison time. His mother wanted him to accept the plea bargain—she didn't know where they'd get the money to defend him in another trial. "Just because you don't go to jail doesn't mean you skate on a deal like that," Coran says. "He would have been convicted on a non-expungable sex offense. He'd have a tough time living his life like that. Every time there's a sex crime, he's on the suspect list. He may not have gone to jail, but he would have remained in a sort of prison the rest of his life." Driscoll couldn't take the deal—"You just made the worst decision of your life," the judge told him in private chambers, according to Coran. Driscoll would accept nothing less than complete exoneration—he didn't want to live under a cloud. He wanted his good name back. But perhaps years on the bench had taught the judge what Driscoll didn't yet know: That in cases involving rape, people's memories and Google's caches don't clear easily. Any good name was already as good as gone.