In The Courts

NYC Juror Questions Handling of Rape Evidence

Wednesday, June 1, 2011

Melinda Hernandez, a juror for the New York City trial of two police officers acquitted last week of rape charges, is anguished over the not-guilty verdict. But in this exclusive interview she says the evidence left no other choice.



NEW YORK (WOMENSENEWS)-- Melinda Hernandez, a member of the jury that last week acquitted two New York police officers, is distressed by a process that she felt left her no choice but to vote not guilty. Justice, she says, was not served.

"As a feminist it really challenged my values to vote not guilty," an emotionally spent Hernandez told Women's eNews in an exclusive telephone interview on May 30.

In particular, she was concerned about the way forensic evidence--in a case concerning police as perpetrators--went through the New York Police Department lab and was then sent to New York Medical Examiners lab. "I think they should have hired an independent person to collect the evidence," Hernandez says. "There's just common sense behind that."

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While acquitted of the rape charge, the two officers--Kenneth Moreno, 43, and Franklin Mata, 29--were convicted last week of official misconduct and fired from the force the same day. They will be sentenced by the State Supreme Court on June 28 and each face up to two years behind bars. Had they been found guilty of rape, the pair could have been in jail for up to 25 years.

In December 2008, the accuser celebrated a job promotion in a Brooklyn bar and became intoxicated. After drinks at the club, she took a taxi to her apartment building in downtown Manhattan and the taxi driver called the police to assist her out of the taxi and up to her fifth-floor walk up. Moreno and Mata responded. Videotapes from security cameras indicated the two police offers returned three more times to her apartment that night.

Hernandez says the woman testified that she was passed out and lying on her stomach and awoke to being penetrated by a penis. Then she passed out again. During the trial, she says it was revealed that Moreno was in the room with her and Mata was said to have been sleeping on her couch.

During a controlled meeting--initiated by the internal affairs department of the New York Police Department--Moreno was confronted by the victim, who was wearing a recording device, outside the 9th precinct. She told him that they took advantage of her. He denied the accusation many times. She told him that she awoke to him having sex with her. Again, he denied anything had happened.

It wasn't until the woman threatened to go into the precinct and make a scene that Moreno admitted to wearing a condom. He also assured the woman that she "didn't have to worry about getting any diseases." She asked if it was the two of them and Moreno told her it was just him. Moreno later claimed that he had said that to get her to leave him alone.

The verdict set off a storm of controversy in New York City, with a large demonstration led by members of the City Council's Women's Caucus, the New York chapter of the National Organization for Women, Feministing and Permanent Wave.

Here are Hernandez's reflections on the case. She spoke from an undisclosed location as she continued to avoid her own home due to pressure from news media for an interview. Three central features of the case led her to cast her "not guilty" vote: the lack of any evidence gathered from the accuser's apartment; the nature of alcohol-induced blackouts as described by an expert witness; and an absent key witness.

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Irrespective of issues about forensic evidence and the process of being a jury member, the verdict in this case sends a clear message - drunk women cannot expect protection, not even from the police and in some cases, such as this one, they may even be the enemy. While I realise that is a sweeping statement, it is these underlying truths that persist in the mind of the public .... so sad .... it is this underlying truth that prevented me from pursuing my own attacker ... my heart goes out to this victim so much so that this story prompted me to write this reaction on my blog - http://thesobersingle.com/?p=200 - the worst thing about this outcome is that it will scare more women from speaking out ....

Regardless of how disgusted we all are with the verdict, it seems that the issue of how forensic evidence was collected is very Important. And deserves to be followed up by the victim's lawyer. Could she not still pursue civil damages against the police department and the city for failure to provide evidence handling that would stand up in court and failure to protect her while she was inebriated???
Thanks for continuing to pursue this story and it gets to the heart of our vulnerabilities within the current system.

One last post and I'll stop (I think).

Were you under pressure not to be a hung jury?

Also, I’ve never seen it mentioned, how did they secure her apartment when they left for the last time if they had her keys? (Since they cared so much about her.)

Again, thank you for any insight you can give us. What is done is done and hopefully we can get some understanding how to avoid this in the future. In other words, if it is pointless and next to impossible for women to win these kinds of cases it is best that we know so people don't put themselves through this torment just to lose.

I'm sure the victim will win her civil suit, which will have more impact on the NYPD going forward. Civil claims and punitive damages in addition to giving monetary compensation to victims also cause institutions and companies to change their behavior to avoid further loses (more than the conviction of one or two people ever would).

Thank you.

Hi, this is Corinna Barnard, WeNews editor, and I conducted most of the interview.

I want to thank everyone for these comments.

I can't answer all these questions but I can respond to a few.

Also, sorry about the technical problems with our site in posting comments. I hope we can figure that out.

On the issue of "blackouts," as we say in the article, the jury was given expert testimony on the nature of these. There is a paragraph about that in the article.

On the question of what swayed the juror to change her mind about voting guilty: we offer a summary and I quote:

"Three central features of the case led her to cast her 'not guilty' vote: the lack of any evidence gathered from the accuser's apartment; the nature of alcohol-induced blackouts as described by an expert witness; and an absent key witness."

I cut out the juror's comment on the taped control meet for space limitation reasons. But she told us the officer's behavior struck her as suspicious. If he had nothing to hide, why say something just to get rid of the accuser? Why not turn to his partner to back him up? That's what the juror's comment to us was, but again we cut that out for space limitations.

(My own interjection on that: Even if the cop's behavior seemed suspect who knows what it meant. Maybe the officer was trying to cover up the oddity of going back to the apartment when he had no business doing that. It doesn't necessarily prove a rape. But I believe it really hurt his credibility with our juror.)

On the general reason why the juror changed her mind, I don't think our article conveyed something crucial that she told us and that other jurors are adding to as they start also speaking out. It's the standard of "reasonable doubt." This is very high and inhibiting to a guilty verdict. As our juror acknowledges in the article, this imposes a heavy burden on the victim.

On a few questions about what the juror knew about sex crimes prosecutions:

In general jurors are not wanted if they have a lot of experience in a given topic. As another poster has said here, our juror has given a lot of herself to help women's workplace rights in nontraditional fields, but she didn't give us the impression she knew a lot about the legal issues surrounding sex-crime prosecutions. If she were it's unlikely she would have been selected.

A few people have offered news clips that make the officers look bad. Here again we cut out something important that she said. She reminded us that jurors are instructed to avoid all media coverage. After the deliberations were over, she told us she did start Googling and she was upset by some things she read. She wondered why some of that hadn't come out in trial. I think there are legal reasons not to use media accounts in some instances. But in any event that wasn't part of what the jury had to work with.

For me, the most important finding from the interview was our juror's misgivings about how evidence went to a police lab first, before the medical examiner. Since police were involved she thought that seemed like a conflict. But that wasn't brought up by the prosecutors and jurors are not supposed to raise doubts on their own.

To editorialize briefly: There's always more to the story than what a trial can ever cover or what a juror can know. Public interest in these cases is the best way to keep daylight on the process. That's why I'm so impressed by the protests and comments and concern surrounding the verdict.

It's hard work to serve on a jury. Jurors are snatched from their private lives and involved in the heavy burden of crimes they did not commit. They are asked to stand in judgement and cast aside their own bias. I think they should be handled carefully afterwards so as not to make others wary of serving themselves.

Avoiding jury duty is something of a cultural reflex--for time and money reasons, but also for the sheer emotional and intellectual and moral demands of it. I've never been selected myself, always sent away. Anyone who's gone through the process has a lot to tell us about the difference between being on the outside of the case as spectators and being intricately involved in the limitations of court rules.

Jurors can be tempted to remain anonymous. Whatever the verdict, someone is angry. When one comes forward to explain her decision it's a generous act of citizenship.

Corinna, thank you for responding to my questions even though you are delivering the bad news that we will not be having a deeper discussion of how this verdict was deliberated.

I spent hours with friends yesterday talking about this case and everyone continues to be disturbed by it.

This case is bound to become as well remembered as the Central Park Jogger case. I thought it would be a perfect opportunity to publicly discuss how victim-blaming thinking lets rapists walk free while victims get a second round of humiliation. This could have been an opportunity to finally start breaking this cycle.

As for the forensic evidence going to the NYPD lab first, implying that the police destroyed or tampered with evidence is a serious charge. But the jury could have applied this suspicion as a way to overcome the lack of forensic evidence. The Judge’s instructions to the jury were:

"What constitutes fact in this case is your determination," Manhattan Supreme Court Justice Gregory Carro instructed the jurors.
First, he suggested, they should determine if the witness told the truth. Then, they should determine if the witness is being accurate.
There is no particular formula for evaluating the accuracy of testimony, he added, counseling them to rely on their everyday experiences and common sense." (NY Post, May 25, 2011)

They were allowed to use their common sense to weigh evidence. If they discussed that this process looked tainted they could have taken it into consideration and given the lack of DNA less weight. Instead the jury used the lack of forensic evidence as the lynchpin in voting not guilty.

As for this juror not being aware of the legal inability of an intoxicated person to consent, the first result on Google for the prosecution’s closing summarized this:
“Prosecutor Coleen Balbert got off to an aggressive start, saying the officers went back constantly to the accuser's East Village apartment in order to sexually abuse her. She said the drunk accuser was incapable of consenting to sex.” (NY1.com)

There really is no excuse for not being aware of this law. Instead it appears to be another example of how all points supporting the victim’s account were ignored or taken lightly.

The medical examiner testified:
A toxicologist in the NYC Medical Examiner's office testified that the woman who claims an NYPD cop raped her (and another stood watch) could have had a blood alcohol level as high as four times the legal limit. When asked if the accuser could have been unable to move while being raped, Michael McGee said, “The effects you're describing are certainly effects that have been observed."

"Using a formula that took into account the woman’s weight, what she ate that day and metabolism rates, Mr. McGee said he was able to calculate her approximate blood-alcohol levels during the four hours in which the officers came and went from her apartment." He found her blood alcohol might have been 0.24 to 0.32 at 1 a.m., right before Moreno and Mata responded to the 911, and could have been 0.17 to 0.22 around 5:10 a.m., when the cops were seen leaving her building. McGee also "estimated that the woman drank from 10.9 to 14.5 standard drinks during a five-hour span on the night of the episode," and said, "Nerves in the body become more and more anesthetized, or put to sleep [when drinking]. It causes it to cease functioning." (gothamist,com)

In fact the most disturbing of Melinda’s comments was, “In any case, what if the consent comes out of your mouth and you don't remember it because you've blacked out?” This is really infuriating, sounding like the jury decided anything that happened was consensual and they didn’t believe she was too drunk to resist (even though this all started with her being too drunk to get out of a car). In other words, she is lying. I get the sinking feeling from this kind of talk that even if Mata had testified against Moreno this jury would still have found not guilty by claim that anything that happened was consensual.

No meaningful reason for how they dismissed the physical evidence of a bruised cervix and a taped confession is given. Instead the civil suit and her attorney-friend not testifying is brought up. This is another indication that the jury believed the victim was lying in order to get money.

Another juror, Richard Schimenti, widely quoted comments, “She was drunk. I don't believe she would have gotten herself into this situation if she wasn't," clearly show this woman is being blamed for two men taking advantage of her.

This is all too depressing. I see the tag line on your site ‘Covering Women’s Issues – Changing Women’s Lives.’ With this verdict women just got more of the same. I hoped this could be an opportunity to explore victim-blaming and ‘lying gold-digger’ thinking and finally start breaking the cycle. Since that won’t be happening here, we will have to have wait for another obvious case where justice was not served.

It looks like that case will start tomorrow. The defense strategy for the DSK hotel maid attempted rape case is that she consensually preformed a sex act for money and then tried to blackmail him for more money. This case should also be a slam-dunk but I fear the lying gold digger mind-think will win the day again.

Many people have posted comments on other sites that claim that you must have heard something listening to all the evidence in court that the general public did not get from reading press coverage. Is there something crucial you believe the press did not cover that made you decide not guilty that we may not have heard? (Not sure how much you have read since you weren't allowed to read anything about it during the trial.)

I get the impression from your interview that her ‘blackout’ state was largely speculated on in deliberations – and you decided she was in a ‘blackout’ state so her memory was not reliable. Was there any talk along of the lines of ‘she barely remembers anything what’s the real harm here, are we supposed to send to two guys to prison for 25 years because things might have got out of control for a few minutes? Or she was drunk anyway, she really only has herself to blame.’

It would be good to know if comments like these were made. People make these comments a lot in everyday life and it is important to understand if this kind of thinking effects jury verdicts.

You mention her $57 million civil suit against the city and her attorney-friend working for the firm representing her. Though this was not a point of evidence to be considered as to whether a crime occurred I know the defense strongly suggested it was a motive to lie. How much was this discussed in the jury room? Did it color anyone's view of the victim's claim?

Thanks.

You said it was not that you believed the officers but that it was ‘hard to believe her.’ If this is the case, then why was your first vote guilty? What was said to change your mind? Again, I just think it is really important for us all to understand.

As for the taped control meet, how did you interpret ‘you don’t have to worry’ and ‘ok’ repeated over and over again as a denial – they can also be interpreted as admissions? And ‘I didn’t take advantage of you’ reflects more his belief that anything that happened was consensual, not a denial. That is more an admission of not having to worry because he used a condom.

Did you consider these all denials? Why would he be worried about her making a claim if he did not have sex with her -- then he would be positive there would be nothing to find. Of course, they would find out about the illegal entries since they knew they were recorded going in and out of the building since they tried to conceal their faces. However you wouldn't be fired for this alone, you would have had to do commit a more serious transgression. Internal Affairs wouldn't believe that he just wanted to counsel her? Did he fear she could have evidence?

[This is why Mata was willing to testify against Moreno to save himself. They were told that there was DNA evidence but the results had not been completed yet. This makes it clear to me that he very much believed something was going to come back so he had to admit it. His story for days was that the sex was consensual. But the law about intoxicated women being incapable of giving consent was explained to him and he agreed we would testify that it was rape.]
(I don't say this to be snarky. I just want to let you know.)

How did you collectively surmise the reason they decided to take her keys and return to check on her (after only 7 minutes) – at the risk of losing their jobs and their pensions?

Their two reasons seem to be that they were concerned about her condition and Moreno wanted to counsel her on her ‘drinking problem.’ Mata testified he never checked on her on the return visits and Moreno didn’t seem to give any examples of saying anything remotely approaching counseling (unless asking if you have a boyfriend is counseling), instead talking mostly about himself. Mata described the interaction as ‘flirty’. How is this in any way counseling? In the DA set-up phone call and controlled meet Moreno, who so wanted to counsel her, showed no interest in even speaking to her after that night.

Did you all consider these stories plausible. This is were most people start from a foundation of them being total liars, believing the only plausible explanation for their behavior was that they were returning so many times in order to take advantage of her in her drunken state, hence no reasonable doubt,

What discussion was there that the only plausible explanation was that they were going back to take advantage of her in her drunken state? Did you discuss if they would have acted this way if the person was a man or a 70 year old woman?

Thanks.

Why did you not find guilty on the burglary charge (entering a residence to commit a criminal act)? Getting into bed ‘cuddling’ and kissing a passed out practically naked person (as fully admitted by Moreno) is sexual assault. Did you all consider this to be consensual? You say she was ‘blackout’ drunk so her memory can’t be believed, but by your ruling she would have had to give consent for this not to be a crime. This would be a reversal of the standard you used to acquit on the rape charge.

Thanks

Her cervix was bruised in a manner consistent with her testimony, yet you say it could have been bruised by several other things but don’t mention any other possible cause other than penetration by a penis. What did you speculate could have been the other reason in order to disregard this evidence? This is a crucial point since this was the prosecution’s physical evidence of rape. Yet you make it seem like it was dismissed easily.

Did you all accept the word of the defense doctor (who I have to mention, since it was pointed out at trial, sat in a parking lot to receive a stolen baby who would later be beaten to death) that it was ‘meaningless redness’ and she would have had other injuries from forced sex (except you all agree she was ‘blackout’ drunk hence not believable, so it wouldn’t have to be forced sex). The Emergency Room doctor testified that it was really not something that should be there.

Thanks

As a member of NOW I implore you to let us know what happened in those jury deliberations, if only to ease your own conscience.

I don't ask these questions to belittle you only to try to understand. Please respond as much as you can. (I will ask each question separately.)

You said it all came down to lack of forensic evidence (though you claimed that you all vowed you were capable of finding rape could occur even if no DNA was found). How was this reasoned out in the jury room?

Moreno admitted to being in her bed for at least 30 minutes so the fact that they found nothing should have served as proof that no forensic evidence being found doesn't necessarily mean anything.

I am so angry with this verdict along with every other woman I know in the city (and a lot of men). By backing down from your original vote on the verdict I think you reinforced one of the worst stereotypes about women (it is one that irks me the most) – that we are yielding and submissive. You have also emboldened the prejudice about intoxicated women making rape ‘claims’ and the attitude that most rapes are not a serious crime unless they include brutal beatings.

However, I have also done things I regret, so I will be respectful.

I ask you to read this coverage from the end of the Internal Affairs investigation back in March 2009 covering how Mata was willing to testify that Moreno did rape this woman.

http://www.nypost.com/p/news/regional/item_UtnH2DNKtTblbLjT19AZ8K

But the prosecution thought their case was so strong that they didn’t want to plead him out.

http://www.nypost.com/p/news/regional/item_qW8cDHNvBgjrxm9Cas0PYL

They did do it. They are guilty. Internally, the NYPD knows the full story, this is why Commissioner Kelly acted so quickly and strongly after the verdict.

This case confirmed for me my gut feeling that Cyrus Vance Jr is not cut out for this job.

He was brought on board by a good-old boys network and then embarassingly lauded by feminists and feminist organizations as the right man for the job.

We are not living in a post-feminist world. If we really want the paradigms to shift, if we really want the thinking to change, we need to support women in assuming the role Vance was given, AND then we need to let those women make decisions and think like women, for women, from the experience of being women - not just to be women performing these roles with male paradigm. This is distinguishable from the male-centric paradigms we live with that we deceivingly put forward as fair and unbiased.

The fact that Melinda did not recall whether the prosecutor emphasized that a woman who is drunk is unable to consent to sexual activity tells me that the prosecutor did not hammer this point home in that courtroom. It is something that should have been said over and over again ad nauseam.

Where was the leadership and guidance from Vance on this case? Do the feminists who hoisted him up trust him now?

Here is a quote from the NYT given by an alternate juror:

An alternate juror who saw most of the trial said by phone that he agreed with the rape acquittal, citing the lack of DNA evidence as a crucial point. He said that although the woman seemed sincere, he had questions about her spotty memory. He also said that the prosecutors, through no fault of their own, just did not have enough evidence to prove their case.

“I definitely thought some funny business went on,” said the alternate juror, who insisted on anonymity. “Is it possible they raped her? Sure.”

----
Again, this quote makes clear to me that the prosecutor did not do her job. The alternate juror DEFINITELY THOUGHT some funny business went on. Funny business!? This alternate juror has left this case affirmed in a belief that because she was drunk she couldn't prove it. The prosecutor should have made it clear that her drunken state voided any notion of consent, for counseling....for cuddling....for "funny business."

The crime of rape is on the rise in NYC.

I hope those feminists and feminist organizations that helped Cyrus Vance Jr, take him to task on doing his job. This case was a miserable failure for women.

The law says anyone under the influence whether blacked out or passed out is unable to give consent, even if she says "yes" if she is significantly inebriated it is NOT consent. This was proven by her not even being able to exit the cab on her own, the police knew she could not give consent and should have been sentenced for the rape as the cop admitted using the condom. Her memory is of course faulty and should not have come into play as to the veracity of her claims. It is highly disturbing that the juror was not explained the law as evident in her comments in the article and that this was one of the elements that was used to vote not guilty. Hopefully they can appeal due to this, as the law is clear = if victim is under the influence and has diminished mental capability, and the perpetrator knows it or can reasonably suspect it, which they obviously did given her circumstances, NO consent can be given, so it didn't matter what came out of victims mouth. I am sorry she did not find justice, and it saddens me more that the comments revolve around what she should have done, her friends should have done and not the cops behavior.

Melinda's expressing regret for making a painful decision, not a wrong one. Our legal system is designed to ensure that there's overwhelming evidence before putting someone in jail for a long term. As a result, bad guys often go free. We applaud this system when it saves someone we think is innocent, but who's been pilloried by public opinion, from going to jail. But when "our" side bears the brunt, it's hard to accept.

Melinda weighed the evidence, both physical and spoken, and, holding her nose, upheld the law by acquitting. It was a horrible situation for a feminist to be in.

I've known Melinda for years and she's fought many hard feminist battles. She was one of four women who broke the gender barrier of the all-male construction industry in the late 1970s. She should be celebrated as a feminist heroine, not vilified by people who sat on the sidelines while she weighed the evidence and came to a tough decision.

I have so many issues with Melinda Hernandez's justifications for voting not guilty that I don't even know where to begin. It sounds to me like she feels she made the wrong decision and now she's trying to justify it to herself and everyone else. She contradicts herself multiple times throughout her own argument.

Let's start with the issue of no forensic evidence. Hernandez states that "we were asked if we thought that if there was no DNA evidence that a rape still could have occurred. Every one of us said yes to that." Yet, she also says that "it all came down to the forensic evidence. There was none at all." How does this make sense? She says it's not necessary, yet then she says she didn't vote "guilty" because it was lacking. Not to mention that the victim showered before having her rape kit done, so it makes sense that there would be no DNA. The cop even admitted to wearing a condom.

Also, consider the supposed issue of lack of evidence that the cops were even in the apartment (i.e. lack of uniform fibers, etc.) It seems to me that this would be irrelevant, since the cops admitted to being in her apartment; not to mention that the surveillance cameras caught them entering the building.

Finally, what about this statement by Hernandez: "...what if the consent comes out of your mouth and you don't remember it because you've blacked out?" You cannot give consent if you are even drunk, let alone blacked out. Cops, of all people, should know this. And if the prosecutor in this case didn't emphasize this, then (s)he really failed this victim.

Finally, Hernandez says she thinks it might have made a difference if there had been protesters outside the courthouse before the verdict was read. According to her, this "would have sent a message that women cared about what was going on inside the court, that women believed the victim!" Yet, earlier in the article, Hernandez says "belief is not part of what you're instructed to consider." Another contradiction. Ms. Hernandez, YOU were the one on the jury, and it was YOUR responsibility to decide the verdict, so don't blame it on the lack of protesters. It sounds to me like you are feeling some guilt and angst about your decision and trying to justify it to yourself (and the world) by blaming everyone else -- the public for not protesting sooner, and even worse, the victim because she was drunk: "it was hard to believe her."

If you voted not guilty, that was your prerogative. But stop trying to assuage your own guilt and explain your decision away in an argument that is, quite frankly, full of contradictions and shows regret on your part.

Yes! Agreed!

My story .. me. Your story..you. End of story.

melimar, the comments in the article certainly have victim blaming connotations and cross theories as the above writer states. Hopefully as you state you are a feminist, you will continue to educate yourself and others on how victim blaming colors rape cases and outcomes, and how instead, the emphasis needs to be put on the choices the perpetrator made. It doesn't matter what she was wearing, how much she was drinking, if there wasn't a rapist in the room, she wouldn't have been raped. the responsibility lies with the rapist.

I would like to apologize to all the NYC Police Officers who "do the right thing". You know who you are and I meant no offense!
Thank you Corinna and Rita for letting me express myself. Job well done! In Solidarity, Melinda Hernandez

Melinda-- I just wanted to say that I think you are incredibly brave for giving this interview, and for bearing the criticism from within the feminist community. I think you point out serious flaws with the legal system, since you show that even someone who BELIEVES the survivor (if holding to the legal system) is made to vote "not guilty". I am not saying that I agree with the way that you voted, but I do think you were faced with an extremely difficult choice, and I want to thank you for having the courage to give this interview, even as it puts you under serious public scrutiny. It was the right thing to do. I hope you continue to speak out about this, and set an example for jurors everywhere. There is still a fight for justice to be had. I'd also like to say to the survivor, in case they are reading this-- I believe you. And I hope that the strength and courage you showed in taking the police officers to trial finds justice in the response of people and survivors throughout the country who are outraged on your behalf. You are us, and we are you. Thank you. Peace and solidarity, Beck

Thank you all for you comments. Special thanks to sisters who understood my position even if you were not in agreement with my decision.
I will not be posting again. Unfortunately, my mother has taken ill, is hospitalized and I am dedicating my time, energy and love to caring for her.

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