NYC 'Rape Cops' Juror Suggests The Woman Consented

By Irin Carmon | September 8, 2011 | 5:50pm

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Patrick Kirkland, a juror who voted to acquit former NYPD cops Kenneth Moreno and Franklin Mata of almost all charges in the notorious rape trial, has written a long piece on the experience for Gothamist. In it, he defends the jury from charges that they let a rapist go free, somewhat explains why they doubted the woman’s testimony — and wonders if Moreno and the woman “hit it off” and Moreno “thought [it] was consensual.”

The longform account (which Gothamist is selling on its website in pdf and Kindle form) includes interviews with some of the principals, including famous defense lawyer Joe Tacopina, alongside the jury deliberations and testimony excerpts.

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Kirkland describes himself as a white male who works as an advertising copywriter and lives on the Upper West Side. At first, he seems sure that Moreno raped the woman, whom he and his partner were called to help when a cab driver called to say she was too drunk to get to her home. Moreno’s “demeanor begged for a label, so I give him one: rapist.”

What follows is a detailed description of how the jurors listened to the woman’s testimony with sniffles, how they studied Facebook photos of her partying that night, how they agonized over the lesser charges. How Moreno did himself no favors with saying “I don’t kiss and tell” on the stand, and insisted that all he did was cuddle the woman and sing “Living on a Prayer.” Much space is given to the woman confronting Moreno outside the precinct and asking him thirteen times if he used a condom, an undercover cop at her side; he denies anything happened every time until the one he says that he did. He claims it was to stop her from making a scene. Much less space is given to the fact that Moreno falsified a 911 call in order to return to her apartment a total of four times — for what, exactly?

It takes awhile to get to how they decided whether or not Moreno raped her. Here is a telling exchange.

“She said she woke up to being penetrated,” Four repeats.
I turn directly to Four. Hours have passed. We’ve gone in circles, and Four has seemingly made the penetration line her new mantra. My elbows hit my knees and I speak slowly.
“You do know that penetration can mean sex, right?” I ask.
I can hear her mind racing, speeding toward the light of reason. “Yes.”
“And you do know that sex does not equal rape?”
She stares down at her notepad.
“She said… she felt the penetration.”
“This is getting nowhere,” Seven says. We’ve hit a wall.

Sex doesn’t equal rape, except when it does: According to the New York state penal code, “Lack of consent, along with forcible compulsion, includes circumstances when the victim clearly expressed they did not consent to the act of intercourse or by means of age, mental disability, mental incapacitation or being physically helpless and a reasonable person in the defendant’s situation would have understood the victim’s words, actions or condition.” Physically helpless “means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” If being unable to walk from a cab, covered in vomit, and requiring police attention isn’t “physically helpless,” what is? There’s a reason Moreno never even tried to argue that there was consensual sex — in the absence of DNA evidence that any took place, despite the fact that he says he cradled her while she was wearing nothing but a bra and no evidence of that remains — he didn’t have to.

Then there is this extraordinary passage, where we go inside Kirkland’s head:

What if the two became close? What if they hit it off, somewhere between the taxicab and the dead roach? A moment that turned into conversation, that turned into flirting? What if it all led to something that Moreno thought was consensual?

He then recalls passing out drunk with his fraternity brothers and waking up with a woman, not remembering how he got there. He doesn’t say whether or not they had sex, just that he doesn’t remember how he got to his bed. It remains up to the reader to wonder what not remembering having sex has to do with mostly blacking out but waking up to being penetrated — i.e., the difference between blacked out omission and remembering something that didn’t happen. Why exactly would this woman have invented the memory? For the three years of fun and analyzing the semen on her pillows?

Again, in the absence of DNA evidence that penetration occurred, it simply came down to testimony. And because the accuser was heavily intoxicated, her testimony wasn’t considered credible. There is at least one juror who believed Moreno less, whom Kirkland calls Juror 11, and who seems to be Melinda Hernandez, who later gave an interview saying she believed the woman had been raped (“a woman knows when she is penetrated”) but that there wasn’t enough evidence to convict.

She is asked, “Out of what they said—out of what Moreno and Mata said on the stand—what do you believe?” Kirkland writes, “Eleven doesn’t even pause. ‘Their names.'”

But at the end, outnumbered, she announces, “I know I’ve been putting up a fight…. I believe they raped her. But we have to do what the law says. They didn’t prove the case.”

Kirkland says,

This is the reality of the U.S. judicial system. Without corroborating proof, all we have to decide on is testimony from memory and memory alone. …This is where the press has tried to explain away our verdict as the “CSI effect”—the theory that says jurors who’ve seen too many TV crime shows demand DNA to convict…. But we the jury never expected it. In fact, on the very first day of jury selection, both sides asked, “Do you need DNA?” Several prospects said yes, and so they were excused. The 12 of us, truthful or not, all said no.
Comparing the experience to a Jerry Bruckheimer TV show is a very simplistic way to describe reality. Just because there’s no DNA doesn’t mean that we have no evidence to base a verdict on, because testimony is evidence. The problem here is that testimony is our only evidence. And when it comes down to deciding what happened in that apartment, we have two testimonies: Moreno’s and the Accuser’s. Both with vivid memories, both with voids.

He also says that it’s possible evidence was destroyed, but it’s possible the men are innocent. “That no matter how absurd the story of cuddling and Bon Jovi sounds, it could be true. That the polished testimony of a successful young woman could be the sign of a solidified sincere truth, or the effect of a story practiced and told so many times that it had become routine and hushed any doubt.” (As in the DSK case, an alleged rape victim is being punished for telling her story—one that must have been repeated to countless law enforcement past all meaning—too well.)

The package also includes a photo shoot with Moreno that Gothamist conducted, which Gothamist publisher Jake Dobkin told me was “particularly controversial” with his staff. He chose the dog picture, above, because “I wanted another one that humanized him.”

Kirkland writes in his story about his restaurant encounter with Moreno and his family, in which they hug and thank him, “It’s impossible for me to imagine these people as “Rape Cops.” It’s impossible to imagine them as anything other than what they are at that moment: human beings.”

It’s true, they are human beings. Monsters or sub-humans don’t commit crimes — humans do, hurting each other, and when that harm falls within the boundaries of the law, are brought to justice for it. Unless, of course, enough people don’t believe the victim or think she might have wanted it.

Confessions Of A Rape Cop Juror [Gothamist]

Image by Katie Sokoler for Gothamist. Used with permission.