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Jan 13 2016

Let’s Use Lessons Learned To Not Pre-Judge Brooklyn Rape Case

A horrible story appears in the NY Press. An 18 year old woman is reportedly raped in a Brooklyn park by 5 men – their ages ranging from 14 to 18. The woman’s father was reportedly threatened with a gun and chased away when he tried to protect her and stop the crime from occurring. Initial media reports that several suspects were arrested and that at least two of them “confessed to involvement in the crime.” The media and the populace immediately go into vigilante-posse mode and decry the perpetrators and demand that they be treated as adults in adult court (as permitted by NY law). Talking heads appeared on cable news shows talking about the psychology of group violence.

Simultaneously, the nation was in the grips of an obsession with the Netflix documentary series “Making a Murderer” chronicling the arrest and prosecution of Steven Avery and his nephew Brendan Dassey. While the series was dealing with one murder case in rural Manitowoc County Wisconsin, the show opened up a national dialogue on overreaching police; overzealous prosecutors; the ineffectiveness of Len Kachinsky; the phenomena of false confessions; whether the criminal justice system as currently operated in most areas lives up the ideals of the Constitution; and the overall difficulty and pressure of being caught up in that criminal justice system.

Yet here, no one was mentioning the possibility that maybe we were not getting the whole story on the Brooklyn rape case. The information that was fed to us was taken as gospel. No one even hinted at the possibility that maybe some of the boys charged were not guilty. Just from hearing the facts of the case, the community had convicted the accused. Now, I am not saying they didn’t do it. But remember that as potential jurors, we need to presume them innocent. We need to keep an open mind and not pre-judge the case before we have all the facts. These are young men charged with a horrific crime. They need all the help the Constitution provides. Let’s all remember that most of us (myself included) were sure -absolutely sure- of the guilt of the Central Park Five only to be proven dramatically wrong.

And when I first heard the account of this case, as I was discussing it with my wife, I said that something just did not seem right to me. How was the father shooed away – yes a gun was pointed at him allegedly but I said that I would likely die trying to save my child from a gang rape. How did five men all rape a woman in the 12 minutes it took for the father to call the police and get them to arrive at the park – where the girl was found half-clothed but the assailants were gone. And sure enough these last few days and into today, we are learning some more information that is very troubling.

Meaningless unless actually used

Meaningless unless actually used

The complainant did not report ever seeing a gun as the father alleged. Furthermore, a police official was quoted yesterday saying “The initial report that all five of them raped her, is not looking like it happened that way.” She now said that only one man raped her while two others forced her to have oral sex and the others grabbed her breasts. It appears both the girl and her father were heavily intoxicated, having gone to the park specifically to drink – intoxication of the victim is not a defense to rape of course but that fact does possibly alter her ability to properly identify the alleged assailants. Videos of the father entering two stores to ask for a phone do not show him as being in serious distress or even saying what he needed the phone for. What about the alleged confessions? Yesterday I read in the NY Times that none of the boys giving statements actually admitted to committing the rape or any crime. Two of the suspects said a third suspect had sex with the complainant. That suspect said he was on the phone the whole time and did not know what his friends were up to. So three admitted to being present but none admitted to direct participation in the crime. Exactly the scenario in the Central Park Five case and in the case of my client David McCallum, who served 29 years for a murder he did not commit based solely on his confession which placed him at the scene while his co-defendant allegedly shot the victim;his co-defendant Willie Stuckey (also cleared of the murder but who died in prison after having served 16 years) was made to say he was there while he saw David McCallum commit the murder. Also, in the Brooklyn park case, the three suspects specifically denied ever having a gun or seeing a gun among their group that night. Did the suspects commit these horrific acts? I have no idea. Only they and the complainant know for sure. All of them could very well be guilty; some of them could be guilty ; none of them could be guilty. The complainant could be 100% truthful; she could be partially accurate she could be making up material elements of the case. The point is we just don’t know right now and we should not rush to judgment. More videos might turn up adding details yet unknown; medical records could shed more light on the case; and of course the rape kits may yield DNA results. All I am saying is let’s not shoot first and ask questions later.

These past two years the country has seen an unprecedented wave of exonerations. As a lawyer who has been involved in the innocence community for nearly 15 years, it was heartening for me to see people open their eyes to the possibility that our beloved American system of justice sometimes gets it very wrong. Folks even began to understand that people – especially young people- sometimes confess to crimes they didn’t commit.Its emotionally rewarding to see exonerees receive settlements that acknowledge the harm done to them by this society. But it would be a tragedy if we don’t take these lessons learned and apply them to new allegations of crime. If we just convict those accused of crimes at the outset based on media or police accounts without a fair hearing what have we really learned? We need to value and apply the protections the Constitution affords those accused of crimes – the presumption of innocence; the right to remain silent the right to competent and effective counsel; the burden of proof beyond a reasonable doubt – at the front end of a criminal prosecution. That is the surest way to reduce the scourge of wrongful convictions – by avoiding them in the first place.

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9 comments

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  1. Freddy Cat

    Yes, they sound like a bunch of Boy Scouts that happened to be in the wrong place at the wrong time.

    From the Wall Street Journal: “One of the teens, Mr. Cooper, was arrested in October on attempted murder charges that were downgraded by a grand jury to assault and fourth-degree criminal possession of a weapon.”

    1. Oscar Michelen

      So that makes them guilty of course. Many exonerees had prior criminal records which is often why police believe they have the right guys. And in this case, as I state in my post, I do not say the men are innocent, just that we all love to jump to conclusions, like you did here.

  2. Freddy Cat

    Charges dismissed with prejudice. Unreliable witness statements, among other problems.

    Though this kid is still involved with an unrelated incident:

    “Shaquell Cooper, 15, who was also charged in the case, is currently being held in jail on assault charges stemming from an episode in October 2015, officials said.”

    And it is you who jumped to the conclusion. No where did I say they were guilty. I said they did not sound like Boy Scouts.

    And while circumstantial character evidence is not admissible in a trial that does not mean it’s not useful if you are a detective so long as you are sensitive to confirmation bias.
    .

    1. Oscar Michelen

      OK

  3. Anonymous12

    Sounds like the girl was scared of a group of local thugs that had nothing to lose. She could not identify them. Sounds like a horrified and tramitized victim. I couldn’t imagine, Prayers go to her family.

    1. Oscar Michelen

      You should know that the investigation apparently revealed that her natural father had sex with her in the park that day. So prayers shoud lgo out to her but her family not so much

  4. Anonymous12

    Since when do 14 years Olds get anything but a slap on the wrist and anything always get espoused record at 21. Criminals are criminals and will do bad again. If I was a traumatized victim and the police blaming victim, its scary and I would tell the state they can make there own case. Its embarrassing, humiliating and traumatizing all over again. The evidence speaks for itself (bruises, torn clothes, text messages, video). Since when is the a gun involved in consental sex. You stated the girl was in foster care was that her adoptive dad or natural dad ? Sounds fishy. Plus what is stopping that guy from hurting the victim after 21 and his records get erased.

    1. Oscar Michelen

      You are wrong on a number of fronts. Depending on the level of crime 14, 15 16 and 17 year olds can be tried as adults. When they do and they get convicted, their records are not expunged at age 21. If they are granted Youthful Offender status they do not get any criminal records but judges often refuse to grant YO status on violent crimes. The girl says there was no gun and no gun was ever recovered. The girl may not have been a victim of anyone but her father (and I believe it is her natural father). Just because the boys may have had a prior criminal record does not mean they committed this crime.

  5. Theresa Fox

    This was a disgusting miscarriage of justice towards the girl. The boys happened upon her father raping her in the park, the pervert had probably convinced her that it was his right. Upon seeing said rape, one or more of these boys got involved with the girl in a sexual manner. They need their asses beat. The father needs to have his privates lobbed off, and the girl needs serious psychological counseling. The police threw out the case, rightfully, I guess. They were disgusted that the girl would not cooperate. I’m sure she was humiliated and probably engaged with these young fellas so as not to compound her terrific (I don’t even have a word for it). I’m not saying what they did rose to the level of rape, but if anybody should be charged with rape, it should be anyone whose DNA was found on her or in her. Gross miscarriage of justice for this girl, probably her whole sad life. And yea, she was probably inebriated and agreed to engage with these other people who happened upon her being raped by her father. Does that make any of this consensual? Wow.

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