March 3, 2012 -- Burden of Proof: Analysis by Chris Cuomo
After watching his client endure an emotionally grueling day of testimony in the Rutgers webcam spy trial, the lawyer for the man known to the world only as M.B. — the secret lover of Tyler Clementi -- told ABC News his client does not want defendant Dharun Ravi to go to prison.
"He knows Ravi did wrong, but he doesn't want to see him go to jail," said Richard Pompelio, a New Jersey attorney who has earned a reputation as an outspoken advocate of victims rights.
Although Ravi faces up to 10 years in prison if convicted on the charges of bias intimidation alone, it may be significant in the court of public opinion that M.B. -- Ravi's other alleged victim -- does not believe he should serve any jail time.
Pompelio said Friday he is pleased his client "got through today and his privacy kept intact which is remarkable. He is very pleased about that... this was the most important thing to him."
According to court documents, M.B. was not out as a gay man at the time of his encounters with Clementi.
A packed courtroom, which included Tyler Clementi's parents and brother, listened intently to the testimony of M.B., the man with whom Clementi was briefly captured on a live webcam showing the two men kissing in a Rutgers dorm room. Clementi killed himself two days after the incident.
Ravi, Clementi's former roommate, is on trial charged, among other things, with invading the privacy of the two men because of their sexual preference. The trial judge has ruled that M.B.'s identity be kept private, and he would not permit television cameras to film M.B.'face nor allow audio equipment to record his testimony.
So, the soundless video image of M.B. broadcast across America was limited to a close-up of his hands. And as the day progressed, his hands were alternately clenched and trembling. At times his torso heaved in heightened breathing. Even by viewing only his hands, M.B.'s anxiety was palpable.
The unusual courtroom image, as seen by television viewers, illustrated a troubling irony in this case — a judicial paradox the prosecutor no doubt had to consider before putting M.B. on the stand.
Though Ravi and his friend, by all accounts, flipped off the webcam after seeing just a few seconds of the two men kissing, M.B.'s testimony Friday further exposed the explicit sexual acts between Clementi and M.B.
Over 100 people packed the courtroom, more than any other day of the trial, to see the witness who wanted to be seen by no one. Among them were approximately 50 journalists frantically scribbling or typing his every word.
"It is very ironic, that MB had to describe having sex in front of a group of strangers and the parents of his dead lover and subject himself to questioning in a case where his privacy was allegedly invaded," said John Fahy, a former New Jersey prosecutor. "The court is doing its best to protect his identity."
Invasion of Privacy
The state had the choice of allowing M.B. not to testify, but they needed his testimony to address their two charges of invasion of privacy. "The prosecution needed to prove sexual activity because that is a requirement of the privacy statute," Fahy said.
To prove the invasion of privacy and attempted invasion of privacy charges, the state must demonstrate that the defendant deliberately set out to expose sexual conduct without permission.
Under direct examination from the prosecution, M.B. told the court that all three dates involved sexual relations, including penetration.
M.B. testified that he and Clementi met on a gay social networking website Adam4Adam in August 2010. They frequently communicated via instant messenger and text messages until finally arranging a rendezvous at Tyler's dorm room on Sept. 16. They considered and dismissed the idea of meeting in a hotel room, and M.B. also invited Clementi to "hang out" in his car.
During their first meeting, M.B. arrived after 10 p.m. and left before 2 a.m. on Sept.17. They did not run into Ravi that night and M.B. told the court, "It was my understanding that his roommate [Ravi] wouldn't be back until [later]."
On their second date, on Sunday, Sept. 19, M.B. noticed a webcam in the room, but initially did not think anything of it. "I just noticed it because I happened to glance over…There was a camera lens glancing directly at me."
"There was no thoughts that somebody might be watching me…If I saw a light on, maybe I would have brought it up. There was no lights on (the webcam)," he said.
The fact that M.B. was unaware of that the webcam could be remotely activated -- and had been activated for several seconds -- and was oblivious to Ravi's tweets about the incidents make it legally difficult to draw the conclusion that Ravi meant to intimidate M.B.
To prove the bias intimidation charges, 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.
The prosecution presented several witnesses earlier this week who said that they had briefly viewed Clementi and M.B. kissing that night via Ravi's webcam. M.B. was unable to identify any of the students, and although he used the words "unsettling" and "uncomfortable" to describe his feelings on Sept 19, he never used the words "afraid" or "intimidated" during his testimony.
Furthermore, M.B. speculated, "I wasn't shaven that night, so maybe I looked older...maybe I looked out of place and that is why they were looking at me," which may undermine the prosecution's allegations that the actions of the defendant were based on a bias against sexual orientation.
In contrast to the "scruffy" and "unshaven" man described in court documents, M.B. was clean-shaven and wore a blue button-up shirt when he took the stand.
On Sept. 21, Clementi and M.B. met for a third time in Clementi's dorm. M.B. recalling hearing people through the window, "talking in the courtyard -- people joking, people laughing. It seemed like the jokes were at somebody else's expense."
M.B. was not permitted by the judge to describe how Clementi reacted to the laughter because it was considered hearsay. Because M.B. did not hear the jokes distinctly and never looked out of the window to identify the students below, this incident cannot be linked to Ravi to support the charges of bias intimidation.