NYC cops' rape acquittal a prism for varying views

When two police officers accused of rape were acquitted of everything except misdemeanor misconduct charges, the verdict was seen as a message. Or many of them.

When two police officers accused of rape were acquitted of everything except misdemeanor misconduct charges, the verdict was seen as a message. Or many of them.

Now-fired officer Kenneth Moreno, who is set to be sentenced Tuesday with former partner Franklin Mata, has called the case "a lesson" about what he described as trying to help his accuser.

The accuser has described it as an "utterly disheartening" illustration of what women face in coming forward with sexual-assault allegations.

Lawyers say it spotlights the difficulty of prosecuting rape cases without DNA evidence and challenges some defense lawyers' reluctance to have their clients testify. Women's rights activists, who plan to rally outside the sentencing, say the case shook their trust in police.

Watching from a distance, one of the 12 jurors whose decision has been dissected from barstools to the blogosphere cautions against reading too much into it.

"Whenever you mix cops, alcohol and sex, it's guaranteed to provoke interest and controversy," juror John Finck said by phone this week. But "the jury's job is very precisely and narrowly defined, and it's not anything about sending an ideological message to the cops or to women's groups or to life in the city, to bar culture. ... Our job wasn't to go to the macro issues at all."

Moreno, 43, and Mata, 29, face anything from two years in prison to not even a probation term at their sentencing on the misconduct convictions, which were for repeatedly returning to the woman's apartment while telling dispatchers they were elsewhere. Moreno, who was accused of raping the woman while Mata stood watch, said he was trying to counsel the woman about drinking.

"Obviously, if I could go back, I wouldn't have done it," Moreno said after the verdict. "It was a lesson to learn."

Mata and Moreno met the woman, a now 29-year-old fashion product developer, after a cabbie called police in December 2008. She had been celebrating a job promotion. Her blood-alcohol level was three or more times the legal limit for driving, authorities said.

After ushering the woman into her Manhattan apartment, the officers returned three times within the next four hours. They said she'd asked them to check on her, but they didn't advise dispatchers and supervisors about what they were doing. Indeed, Moreno admitted making a bogus 911 call about a sleeping vagrant as a pretext to go back to the woman's building.

The woman acknowledged she passed out and her memories of the night were fragmented. But she told jurors she vividly remembered awaking to being raped in her bed and was certain that her attacker was an officer.

Moreno testified that he cuddled with her in her bed while she wore only a bra but they didn't have sex. Mata told jurors he was napping on her sofa.

In a secretly recorded conversation with the woman days later, Moreno alternately denied they had sex and said "yes" twice when she asked whether he'd used a condom. Moreno told jurors he was trying to placate her.

No DNA evidence implicated the officers to the scene, and experts debated whether an internal mark on the woman could be seen as evidence of rape.

"It would have been so much easier had there been physical evidence, but in the absence of that, you had to go into the more subjective realms of credibility, of witnesses, of corroborating testimony," Finck said.

"I think the general feeling was both parties acted very irresponsibly," but the woman's compromised memory created enough questions to acquit the officers of the most serious charges, he said.

"The reasonable-doubt standard carried the day," he said.

While the officers called the verdict a victory and vindication, others called it an outrage.

The city's tabloids declared it was "open season for predators in uniform" and said the "jury gave two rotten characters the full protection of the law." Some City Council members held a news conference outside City Hall to decry the verdict, while women's rights activists demonstrated outside the courthouse.

"Women are rattled about this, really rattled," says Sonia Ossorio, the executive director of the National Organization for Women's New York City chapter. "Turning to police for help is no longer a given."

Legal experts are digesting the verdict, too.

For prosecutors, "I think that one should take some caution from it," though the accuser's spotty memories and the lack of forensic evidence were considerable hurdles, says Fordham University School of Law professor James A. Cohen.

Manhattan District Attorney Cyrus R. Vance Jr. has said the misconduct convictions acknowledge that the former officers violated the law and the public's trust.

Meanwhile, some defense lawyers have told Moreno's lawyer, Joseph Tacopina, the case made them think differently about having defendants testify, a move many lawyers generally view warily, he said.

He, too, has been struck by the "visceral reaction" to the case on all sides.

"It's been disappointing to see people complain or protest or argue against the verdict when they didn't see a minute of testimony," he said in an interview.

Mata's lawyer, Edward Mandery, declined to comment. Both lawyers said the former officers wouldn't comment before the sentencing.

New York Police Department Commissioner Raymond Kelly, who had called the allegations an "outrageous aberration" for the nation's largest police force, fired Mata and Moreno within hours after the verdict.

___

Jennifer Peltz can be reached at http://twitter.com/jennpeltz

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