NEW BRUNSWICK, N.J. March 8, 2012— -- Burden of Proof: Did Prosecutors Meet It? Analysis By Chris Cuomo
The prosecutor rested its case today in the webcam spy trial of Rutgers University student Dharun Ravi. The state's case lasted nine days, consisting of a score of witnesses and a thick stack of computer emails, tweets and instant messages into evidence.
The case stems from circumstances surrounding the 2010 suicide of Tyler Clementi. Ravi, who was Clementi's roommate, is not charged in any way with Clementi's death. But he is charged with invasion of privacy, witness tampering, hindering prosecution and, most importantly, bias intimidation, a hate crime for which Ravi faces up to 10 years in prison.
Initial media reports described a videotaped encounter secretly recorded by Ravi that went viral. They were false. Many believe these inaccurate reports sparked public outcry and prematurely made Ravi the national poster boy for gay-bashing and cyber-bullying.
So, did the state make its case against Ravi?
Of course, that is a question subject to the vagaries of jury deliberations, but there are some objective points of analysis that shed light on a potential outcome. Bottomline: an ABC legal analyst, who have been scrutinizing each day of the highly publicized trial believe prosecutor Julia McClure was effective in supporting some of the state's charges, but comes up short on the most serious accusations.
"The prosecutor has presented a very good case as to invasion of privacy, a decent case as to hindering apprehension and witness tampering, and a bare bones case for bias intimidation," said John Fahy, former New Jersey prosecutor who is now a criminal defense attorney.
From Superior Court Judge Glen Berman's point of view, the state's case proved at least worthy enough to give to a jury. He denied a motion by defense co-counsel Philip Nettl to dismiss several of the counts for lack of evidence.
Defense attorney Steven Altman too gets high marks from the two analysts, who say his cross examinations of state's witnesses have provided convincing testimony that Ravi is not a homophobe, but a teenager who is an immature computer geek.
"Altman has been very good in his cross-examinations," Fahy said. "He showed that Ravi was not homophobic and was a typical college student.
Robert Honecker, also a former prosecutor agrees: "A good defense attorney exploits each and every weakness in the State's case. Altman has been very good doing that up to now. Expect him to be even better in the defense case."
With each witness, key points have been scored by opposing lawyers, setting up what could be a long and difficult jury deliberation. In terms of what the jury has to go on from the trial, here is what we know:
On Sept. 21, Clementi requested a room change and read another Ravi Tweet: "Anyone with iChat, I dare you to video chat me between the hours of 9:30-12. Yes, it's happening again."
Those are the bare-bones, corroborated highlights of the case. But the critical question that remains unanswered is: why did Ravi do this? Consistent with their opening statements, the state is attempting to prove Ravi's actions were motivated by a gay bias and intention to intimidate Clementi, while the defense are establishing a record that Ravi is not a homophobe and, in fact, liked his roommate.
After the defense rests its case, in all likelihood next week, the jury will begin its deliberations, matching up evidence with each count of the 14 count indictment. Here's a snapshot of the indictment and how the state has fared thus far:
Invasion of Privacy
Counts 1 (4th Degree) and Count 3 (3rd Degree)
There is no doubt that Ravi used his webcam to spy on Clementi for a few seconds on Sept. 19, 2010. While the law provides no parameters for the extent or degree of action to trigger "invasion," there seems to be little question about what happened in this regard. Ravi admitted as much when questioned by detectives, and Molly Wei, his friend who is cooperating with the state, said that the two turned on the camera in order to spy on Clementi and his lover.
Thus, the state contends he spied with the intention of seeing a sexual encounter, and that is invasion of privacy.
The defense strategy here though is also backed up by Ravi's initial statement to police – that he turned on the webcam because Clementi's visitor "creeped" him out and he feared the man might steal something. The counter argument to the prosecution is therefore: Ravi didn't think he would see the tryst in progress, he was just trying to monitor his belongings because he was suspicious of Clementi's lover.
Attempted Invasion of Privacy
Count 5 (4th Degree) and Count 7 (3rd Degree)
These charges refer to Ravi's aborted attempt to capture Ravi and M.B. on his webcam a second time, on Sept. 21.
Witness Lokesh Ojha, Ravi's friend, testified that he helped Ravi position the webcam so it was pointed at Clementi's bed. Several witnesses, including Ojha, also received tweets from Ravi, inviting them to connect with his webcam and view the encounter.
These are probably the strongest charges for the prosecution. Ravi's claims to police that he was still concerned about the security of his belongings has yet to be supported.
The open question, and perhaps the only chance for Ravi to beat this charge, rests on whether he disabled the camera. Ravi claims he disabled the camera while the prosecution contends it was Clementi wa who disabled it. Who was responsible for turning the camera off was never fully answered.
Count 2 (3rd Degree), Count 4 (2nd Degree), Count 6 (3rd Degree) and Count 8 (2nd Degree)
This is the heart of the state's case, the epicenter of national media attention and, in Count 4, the charge that could put Ravi in prison for up to 10 years. These are the hate-crime charges that must prove that Ravi's actions were meant to intimidate Clementi and M.B. because they were gay.
A string of prosecution witnesses have all said they never heard Ravi express any animosity and anti-gay sentiments toward Clementi. In fact, Ravi told some he liked his roommate.
The prosecutor, however, has entered computer messages authored by Ravi saying "We have to keep the gays out" and that he saw Clementi "making out with a dude. Ew."
The state's bias claims are stronger for the second, aborted attempt to capture Clementi on live camera. A juror could reasonably believe the first incident was innocent enough, and Ravi turned off the webcam – after only a few seconds – when he saw the two men kissing.
But when Clementi asked Ravi if he could have the room to himself on Sept. 21, Ravi realized a second date was going to occur. So, testimony and evidence shows, he told some of his friends and set up his webcam to capture it again, and the state contends it was to view sexual activity and humiliate Clementi.
The state has not made an overwhelming argument that there was intimidation, and further, they produced little evidence that Ravi was motivated by homophobia. In fact, defense attorney Altman has elicited testimony from several witnesses, saying Ravi is not a homophobe.
This will no doubt become the central issue during closing statements from both attorneys. It is reasonable to expect Altman to directly attack this charge when he presents his case next week.
Tampering with Physical Evidence (Counts 9 & 10)
Count 9 (4th Degree) and Count 10 (4th Degree)
Evidence has shown that Ravi on Sept. 22 deleted, and then reposted a tweet he authored inviting friends to watch the second episode on Sept. 21.
Ravi tweeted: "Anyone with iChat, I dare you to video chat me between the hours of 9:30-12. Yes, it's happening again."
He later deleted the tweet and posted: "Ignore the last tweet. Stupid draft."
Altman will try to show this was merely the panicked actions of a scared kid, caught in a prank that went wrong.
Hindering Apprehension or Prosecution
Count 11 (3rd Degree), Count 12 (2nd Degree) and Count 13 (3rd Degree)
Count 11 refers to the replacement Tweet Ravi authored saying people should disregard his invitation to watch.
Count 12 reflects the testimony of Molly Wei, who said Ravi texted her while she was in the police station on Sept. 23. Ravi was telling her to tell authorities it was a prank and they had no intention of seeing anything so intimate.
This has emerged as a critical charge. Originally presented as a third-degree crime, which carries a presumption of no jail time, the judge noted before trial it was actually a second-degree crime, for which the presumption is a prison sentence of five to 10 years. The indictment was amended, upgrading the degree, but the judge said before trial, if Ravi is found guilty of this count, he may treat sentencing as if it were a third-degree crime.
Count 14 (3rd Degree)
Molly Wei testified that on Sept. 23 she received a phone call from Ravi, while she was at the Rutgers Police Station, and then sent her a text message in an attempt to convince her to temper her statement to authorities.
Ravi's message: "Did you tell them we did it on purpose?...Because I said we were just messing around with the camera. He told me he wanted to have a friend over and I didn't realize they wanted to be all private."
Wei responded: "Omg dharun why didn't you talk to me first i told them everything."
Tampering with Physical Evidence
Count 15 (4th Degree)
This also refers to the tweet message Ravi sent to Wei, and later deleted from his phone.
Credit defense attorney Altman with making the prosecutor rest the state's case with a whimper. Trial lawyers, as a rule, like to end their case with a bang, and McClure intended to end her case by showing the hour-long video of Ravi being questioned by police.
Altman, intentionally or otherwise, challenged the chain of custody of state's evidence Wednesday, compelling McClure to put investigators back on the stand to demonstrate that their evidence had been handled properly. It was far from riveting testimony.
Now it is Altman's turn.
Altman's strategy is clear, as he laid out in his opening statement. He repeatedly pointed out that though Ravi was legally an "adult" in the fall of 2010, he was actually "an 18-year-old kid," fresh out of high school on his first venture out into the world.
"We all do stupid things," Altman said. "But he never committed a crime."
Altman will no doubt continue to hammer that theme. His witness list is comprised of college friends and a private detective. He will likely call on more friends of Ravi to testify the defendant is not a homophobe.
"You can expect Altman to portray Ravi as a young man only three weeks into his college career who was doing dumb things that many college students do," Fahy said. "He wants the jury to see a kid who did not understand the consequences of what he did and the pain he may have caused, that there never was criminal intent of any kind."
And of course, the looming question is: Will Ravi take the stand?
"I think it is unlikely that Ravi will testify," said Fahy. "He can only hurt himself by taking the stand.