Testilying II: Fooling the Jury

Last month in New York City two New York City policemen were on trial for raping a drunken woman after they had been called by a solicitous cabdriver to assist her up to her apartment. She was very drunk, experiencing alcoholic blackouts earlier in the night and after arriving home with the policemen. Undisputed was that after escorting her to her apartment, the cops returned on three separate occasions in the early morning hours of December 8, 2008. Their arrivals and leavings were recorded by a surveillance camera above a bar on East 13th Street and Avenue B in the East Village neighborhood of Manhattan.

The first time, they helped the legless woman into her building at 1:10 a.m. and left 7 minutes later. They returned at 1:52 a.m. and left in 17 minutes. Their third visit was at 3:00 a.m. and lasted 33 minutes. Their final visit was at 4:27 a.m. and they left at 5:07 a.m. In all, they spent 97 minutes in the woman’s building and, except for their first Good Samaritan assignment from the Police Dispatcher, gave back false reports over the police radio about where they were and why, while they were on the three subsequent visits to the woman’s apartment. When she awoke the next day, her recollections were spotty but she remembered hearing “the sound of Velcro separating” (police uniforms and equipment abound with Velcro fastenings); remembered her pantyhose being pulled down; remembered being penetrated as she lay face down in her bed.

During a two-month trial in Manhattan Criminal Supreme Court last month, 35 witnesses testified and, quite amazingly, the accused rapist, a 41-year-old officer with 20 years on the job, took the stand. His younger partner, with 3 years on the job – accused of standing by (‘playing chickey’) – also testified, corroborating his partner’s account. The older cop admitted to all the visits and the false reports made as cover but ascribed his motives to the desire to help another suffering alcoholic. (That’s right, he’s a recovering alcoholic.). In the course of helping, he snuggled spoon-like with her in her bed, kissed her either on the forehead or the shoulder (depending on which newspaper you’re reading), during which she “came on to him wearing only a bra”. But he didn’t rape her; he “supported” her, and while lying with her in her bed sang to her Bon Jovi’s ‘Livin’ on a Prayer.’ (Here the mind disconnects: who would say such things?)

The female Assistant District Attorney who tried the case cross-examined him long and hard, especially on one point described during her direct testimony. The morning after the rape when she woke up shaken, in her bed in a pool of vomit, she went to friends before calling the police. Later, the District Attorney’s investigators fitted her out with a recording device and sent her to confront her rapist.

During that meeting outside the 9th Precinct station house on East 5th Street where both cops worked, the woman pelted him with questions – Why? Why me? How could you? one presumes – and he answered: “Don’t worry. I used a condom.”

The jury deliberated on a verdict for seven days. Conviction, right? Nope. Both cops acquitted of Rape 1st degree (‘forcible’ because the woman had not the capacity to consent) and Burglary 2nd degree (when you trespass in a dwelling to commit a crime therein). A garrulous male juror, juror number 12, happily talked to the press about his reasons for acquitting the cops (Beware of such jurors). He said: No physical evidence to corroborate the rape (the cop said he used a condom, genius); she couldn’t remember a lot (she remembered the sounds of his disrobing, felt her pants being pulled down, knew she’d been penetrated from behind, remember?); and, “I thought maybe he raped her, she was very credible, but like the law says the the proof must be BEYOND A REASONABLE DOUBT” (emphasis supplied). That last: the most misunderstood proposition in our law.

At the beginning of every trial, the judge reads to the jurors his Preliminary Charge to the Jury. That’s right, he reads it out of a book; it’s a script, never varied, because it’s been approved by the judges on high as bullet-proof to withstand attack in the Appellate Courts. Judges ad-lib at their peril: namely, reversal of a conviction for misleading the jury by their homespun examples. At the end of the trial, the judge does it again, at excruciating length, in his Final Charge to the Jury before sending them off to deliberate on a verdict. The centerpiece of both Charges is an explanation of the meaning of the term: “proof beyond a reasonable doubt.” I’ve listened to the Charge at least 100 times (the number of felony jury trials in which I was the defense lawyer). That Final Charge, depending on the number of Counts in the Indictment that His Honor must explain the statutory elements of, will last no less than one hour but more likely two. I confess that it is a challenge for me not to nod off during its recitation (a challenge that I have not always risen to). But I always remember these three salient points: first, a reasonable doubt is a doubt for which you can give a reason; second, jurors must use their common sense in deciding what they believe to be the facts in the case; third, consider the demeanor of witnesses on the stand in evaluating the credibility of their testimony. Obviously, the jury that gave these cops a pass nodded.

The most illuminating post-verdict recollection came, of course, from Juror No. 12: “. . . when we requested to hear again the victim’s testimony and the Court Reporter read it back to us, we could see the holes. . . ” (What? Not the emotion? Not her pain as she relived being raped? Just the facts, ma’am?) An experienced trial lawyer knows that when both victim and defendant testify in a trial (an infrequent occurrence), jurors are comparing, and deciding whom they believe before ever leaving the box for the jury room.

During Voir Dire of the panel at the beginning of trials, lawyers for both sides never fail to exhort prospective jurors to hold fast to their firmly held beliefs. During deliberations, three women jurors at first voted to convict these criminal cops but were turned by their fellow jurors. Shame on you, ladies! Every trial lawyer knows that cases are won or lost depending on the jury you pick. Rather than impaneled, this one should have been sent home without lunch.

(Next: LYING DEFENDANTS & THEIR LAWYERS)

Robert Knightly