March 1, 2012 -- Burden of Proof: Analysis by Chris Cuomo
With one line plucked posthumously from an email of Tyler Clementi, the prosecution in the trial of former Rutgers student Dharun Ravi presented its first piece of evidence supporting the state's allegations of a bias crime after four days of testimony.
"I feel like my privacy has been violated and I am extremely uncomfortable sharing a room with someone who would act in this wildly inappropriate manner," Clementi wrote to a Rutgers resident assistant, Raahi Grover, after he sought to be switched to a single room.
Judge Glen Berman allowed that sentence – and only that sentence -- to be submitted as evidence from the incident report that Grover sent to higher management at the school. The judge also demanded that the state delete the words, "wildly inappropriate" since this phase dealt with Ravi's conduct rather than Clementi's own feelings. The judge did not allow the rest of the email, saying it violated hearsay rules of evidence.
The email was written by Tyler Clementi, Ravi's dorm roommate, two days after he was briefly viewed live on Ravi's webcam kissing another man.
Ravi, accused of spying on his roommate with a webcam in September 2010, has been charged with multiple counts of invasion of privacy, tampering with evidence and bias intimidation—a hate crime.
To prove bias intimidation, which carries a potential 10-year prison sentence, the state must show that Ravi intimidated Clementi because of his sexual orientation, a charge which several of the state's own witnesses have refuted.
Yet according to former New Jersey prosecutor, this is the first tangible accomplishment in a prosecution that many view as sputtering.
"Tyler's email and Grover's testimony satisfies one of the prongs of hate crime in that Tyler Clementi reasonably believed he was being intimidated," said John Fahy, a former New Jersey prosecutor. "It gets them closer, but the fact there has been nothing said to indicate the alleged invasion was based on homosexuality still creates a problem for the prosecutor."
Ravi came to Grover's room on the night of Sept. 21, 2010 to request a room change, but upon cross-examination, Grover admitted that he had never heard Ravi say anything about Tyler's sexual orientation.
According to Grover, Ravi appeared "shaky" and Grover thought it appropriate to file an incident report immediately. When further questioned by defense lawyer Steve Altman, Grover said that it was he, not Clementi, who "escalated" the request and believed it should be implemented "ASAP." But Clementi returned to his shared dorm room that same night and rejected an offer by Grover for another place to sleep.
"Tyler is upset and uncomfortable and wants a room change ASAP and for Dharun Ravi to receive some sort of punishment," Grover wrote in an incident report after speaking to Ravi on Sept. 21, 2010. Grover also testified that he later spoke to Ravi twice about the incident, but never heard Ravi say anything that could be interpreted as gay bias.
While the state made headway toward showing Clementi felt intimidated, they have yet to show any evidence that Ravi was motivated by Clementi's homosexuality.
"The biggest problem the state has is that nearly all of its own witnesses have testified the defendant is not homophobic and did not do this because Tyler was a homosexual," said Fahy.
There are three criteria in the bias intimidation law. The first two call for evidence that the defendant purposely or knowingly attempted to intimidate based on biased motivations. The third criteria calls for evidence that shows the victim had good reason to believe he was being intimidated. A jury must unanimously agree on at least one of the criteria to convict.
To prove invasion of privacy and attempted invasion of privacy, the state must demonstrate that the defendant deliberately set out to expose sexual conduct without permission.
Invasion of Privacy
The prosecution attempted to build its invasion of privacy charges on the testimony of Lokesh Ojha, a former freshman in Davidson C dormitory at Rutgers and friend of Ravi.
Ojha's testimony primarily addressed whether Ravi deliberately orchestrated a second viewing of Clementi in a sexual encounter on Sept. 21, 2010.
Ojha stated the webcam "didn't work" on that night and so no viewing was possible. The attempted invasion of privacy charges require the prosecution prove that there was at least a reasonable expectation that Dharun sought to view a sexual encounter.
Despite the defense's objections, the judge did not allow Ojha to answer questions relating to what Ojha expected to see on the webcam because he deemed it too speculative.
Upon cross examination, Ojha admitted that he had lied to investigators when he initially told them that he had no further relevant information to share since he later admitted, "I helped him set it up."
Ravi had used Ojha's laptop to determine the position of the webcam in his own room. While Ojha was folding clothes nearby, Ravi clicked on his own iChat video screen name. He then walked down the hall to his own room and repositioned the webcam "an inch" toward Clementi's bed, according to Ojha. The re-positioning of the camera toward the bed may help the prosecution's case that Ravi had expected to witness a sexual encounter.
But when asked about whether Dharun expressed any hatred toward Clementi, Ojha said "He said that he liked Tyler." This statement further undermines the prosecutions charges of bias intimidation. Ojha also indicated that he and Ravi were motivated by technical curiosity when they set up the webcam.
Tampering with Evidence
Tampering is the hiding, destroying and manipulation of evidence after an investigation is underway.
Neither witness on Wednesday addressed the tampering charges against Ravi.
What to Expect:
Today, the state is expected to question the trial's most anticipated witness – MB, the 30-year-old man who is identified only by his initials to protect his identity, who was viewed kissing Clementi on September 19. M.B. also returned to Clementi's room on a second date on September 21, the night before Tyler committed suicide.
Although all witness testimony so far has been broadcast live on TruTv and online, Judge Berman ruled that M.B.'s testimony will not be televised or audio-recorded in order to protect his identity. Such privacy safeguards are usually reserved for cases involving sexual assault. Unlike the other witnesses in this case, M.B. will enter and exit the court through private hallways.