Former officers Kenneth Moreno (left) and Franklin Mata after the trial. (Steven Hirsch)
Thursday’s acquittal of two New York cops in the rape of a young fashion executive has already gone down as one of the most shocking verdicts in the city’s history. Officers Kenneth Moreno, 43, and Franklin Mata, 29, admitted to helping the inebriated woman into her East Village apartment in response to a call for help. Surveillance videotape showed the officers leaving, then re-entering her apartment three additional times, with Moreno making a fake 911 call to cover up one of those returns. (Officer Mata, charged with serving as Moreno’s lookout and presumably familiar with criminal law, testified that he didn’t know “if making a fake 911 call is a crime.”)
Moreno, accused of rape, testified that the woman, in between violent episodes of vomiting, attempted to seduce him and that he’d rebuffed her — although he did serenade her with a Bon Jovi power-ballad. Finally, he said, all they’d done was cuddle in her bed, she in only a bra.
The bruising to the young woman’s cervix, the defense argued, was the result of her vigorous scrubbing in the shower, and this tack — revealing a staggering lack of familiarity with female anatomy — makes the not guilty verdict that much more incredible. Wouldn’t any competent jury question whether rough sex was the more likely explanation? Just how credible does a jury find a drunken young single woman in New York City? Did the lack of DNA evidence damn the prosecution — and if it did, should it have?
The Post spoke with multiple experts in criminal law and sex crimes, including a source in the DA’s office, who asked not to be named and who says that, “to be totally honest, we knew from the beginning that it was going to be a really challenging case. We could’ve said, ‘Ah, this case is a dog, there’s no DNA evidence.’ But we believed in her. We know we’re supposed to respect the jury’s verdict, but we’re disappointed.”
Of our five experts, all agreed that there were three major contributing factors to this outcome.
THE ‘CSI’ EFFECT
“That’s what we call this,” says Eugene O’Donnell, a former cop and prosecutor in New York and current professor of law and police studies at John Jay Criminal College. “CSI Seattle, CSI Anchorage
. . . there’s an insistence on the part of the jury that prosecutors have to have DNA evidence. They believe that it’s present and necessary — it’s neither.” O’Donnell believes that “the law needs to be changed,” that judges should be legally bound to inform juries that a lack of DNA evidence doesn’t equal innocence. “We need a remedy with jurors,” he says, “because I don’t think it’s getting through.”
“This is a trend, and it’s upsetting,” says Mary Griffitts, an attorney and jury consultant for such blue-chip companies as Johnson & Johnson.
“ ‘CSI’ has made things more difficult. There’s no law saying that ‘beyond a reasonable doubt’ means we show you DNA. It means ‘evidence that points to a moral certainty that is beyond dispute.’ ”
“ ‘CSI’ has not helped,” says Leslie Crocker Snyder, the legendary former New York prosecutor who, in 1974, founded the first sex crimes unit in the country; she also co-authored the rape shield law, which prohibits a victim’s sexual history from being used as evidence, that same year.
This verdict, which Crocker Snyder finds “extremely disappointing — the story told by the main defendant was just ludicrous,” says that the demand for irrefutable physical evidence was as rigid back in the ’70s, when every rape victim had to have a corroborating witness. That extended from a positive ID of the perpetrator to the use of force to penetration.
“My first rape case in 1970, two women were pulled off the street in Alphabet City, dragged into a filthy tenement stairwell, and raped,” she says. Crocker Snyder thought she’d cleared the exceptionally high legislative bar: Not only were the two women each other’s witnesses, but the perp had stolen each of their wallets. The jury acquitted, however, because the rapist’s semen was found only on the inside of each woman’s underwear. “Never mind that rapists are famous premature ejaculators,” she says. Twelve years later, the same man was eventually convicted on a separate set of sex crimes.
Compounding the issue: Many juries are easily swayed into believing that 50% of rape claims are fabricated (the actual percentage is 3-5%, on par with false theft claims). “This is an especial problem with rape cases,” O’Donnell says. “Who gets up in the morning and says, ‘I’ll read the paper, feed the cat, and oh, yeah, say I was raped?’ ”
THE FEMALE JUROR
The gender divide on this specific jury was seven men, five women, and our experts say this isn’t surprising — prosecutors are wary of female jurors in rape cases, because female jurors are the most judgmental when it comes to the alleged victim and her behavior. That this accuser was admittedly blackout drunk was always going to be played as a characterological flaw — because it works.
“No matter how we’ve transitioned into the business world, etc. as women — in post-trial interviews, the character of the parties always comes into question,” Griffitts says. “And drinking becomes a character issue.”
“The female foreperson had a smile,” says the source in the Manhattan DA’s office. “Traditionally, our harsher jurors tend to be women — they think, ‘I would never have been so drunk that I needed to call for help. I’d never have let those guys into my apartment.’ ”
“This is a textbook thing; it’s taught as a trial selection issue,” says O’Donnell. He says the bias women have towards each other when it comes to sex crimes reminds him of the questioning female victims would endure from male cops back in the 1970s: “It used to be they’d ask you, ‘What were you wearing? You were out at 4 in the morning? Who was with you? How’d you get home? Were you drinking?’ ”
Some female victims, he says, reject female doctors and investigators. He really has no idea why: “These things,” he says, “are so deep.”
“It’s a well-known fact that, in rape cases, you generally don’t want women on the jury,” says trial lawyer Lisa Bloom. “Women have said to me, ‘How could she have let herself get so drunk?’ Maybe it’s self-protective, the idea that this could never happen to you.”
REGRESSIVE ATTITUDES
The disappointed member of the DA’s office points to another case that wrapped up this week, in which she hopes women will take comfort: the conviction of a man in the rape of a 61-year-old woman in a nursing home. There were no witnesses to the rape; the woman hit the alarm button; she can’t speak, and gave her entire testimony by pointing at a chart of letters.
“That guy got seven years,” says the source.
But as Griffitts points out, that verdict, in many ways, illuminates the stubborn double-standard so common with sex crimes. “You always look at what the victim was doing,” she says, “which is why this case is different than an elderly lady laying in bed, doing nothing. ‘Blame the victim’ has not gone away. It’s just become a little more sophisticated.”
“The subtext is, ‘She deserved it,’ ” Bloom says. “That’s what’s so appalling.”
Along with sexual and societal mores, the legal system remains just as stagnant: The average sentence for a rape conviction is three years, maybe 11/2 with good behavior.
Moreno and Mata were found guilty of official misconduct and were fired by Commissioner Ray Kelly on Thursday. The victim, meanwhile, has a pending $57 million suit against the city, and the burden of proof is far less onerous than in a criminal trial. The reverberations of this case, however, are long-lasting, and all of our experts are concerned future victims will be far too demoralized to come forward.
“I think that this and the DSK case are bad for women, in that there really is an intimidation factor out there,” says O’Donnell. “But women should know that people get convicted all the time. The police department and the Special Victims Units in the city are really good.”
“At least some will still come forward, knowing we’ll take their case seriously,” says the source with the DA. “People say that this can be such a setback. But we’d do this case again.”