Burden of Proof: A Case of Prosecutorial Discretion

March 6, 2012— -- Burden of Proof: Analysis by Chris Cuomo

Rutgers University student Lokesh Ojha has emerged as a key prosecution witnesses in the trial of Dharun Ravi, accused of invading the privacy and cyberbullying his college roommate, Tyler Clementi.

But could Ojha just as easily been a defendant?

Ojha's name came up again Tuesday in the eighth day of the trial in the testimony of two computer experts, who testified that Ravi engaged in video chats on the crucial evening of Sept. 21, 2010. The next day, Clementi leaped to his death from the George Washington Bridge.

Attempted Invasion of Privacy

The prosecution is using the computer experts to corroborate Ojha's earlier testimony that he helped Ravi set up a second viewing of Clementi who was planning a second encounter with an older man that night.

Testimony has shown that Ravi and Molly Wei, who is now cooperating with the state, briefly watched Clementi and the 30-year-old man, known only as M.B., kissing in a dorm room two days earlier.

Ravi's alleged attempt for a second viewing is critical in the state's contention that Ravi was motivated by gay bias.

Other Possible Defendants Complicate the Case

Wei was originally charged with Ravi, but entered into a plea deal that would allow her to avoid jail and a criminal record. Yet questions remain as to why Ojha also was not charged as a co-conspirator.

"They certainly could have charged him with attempted invasion of privacy," says John Fahy, a former New Jersey prosecutor. "He discussed the intended webcam incident, and he helped Ravi arrange the camera to carry it out."

With two students in their respective rooms, Ojha testified last Wednesday, he hooked into Ravi's webcam, which showed Clementi's half of their dorm room.

"I remember he [Ravi] was walking around. He moved his computer an inch... I saw Tyler's bed," Ojha testified. "I said it was good and he said he couldn't really hear me and I gave him a thumbs up."

In addition, Ojha admitted under cross-examination that he lied to investigators when first contacted by police.

"I wouldn't say it was a lie," Ojha said, then changed his mind, conceding, "Well, yeah."

Pressed by defense lawyer Steven Altman, he was asked, "Were you lying?" to which Ojha answered, "Yes."

When asked why, Ojha, looking shaken and pausing to pour himself water from a pitcher, said he was "scared." He later added, "I was a freshman and I thought my college career was over because I helped him, I helped him set it up."

The Middlesex County Prosecutors Office, declined comment about why Ojha was not charged, as they have consistently done throughout the case. Ravi was ultimately charged with both crimes.

"Ojha could have been charged with hindering apprehension as well," Fahy said. "Prosecutors have a lot of discretion in this area. I imagine they thought having another defendant would complicate the case."

Rober Honecker, also a former New Jersey prosecutor offered this:

"They were weighing in their minds if he would be a valuable witness for the state. And as it turns out, he is an important witness. They had to do a quick evaluation and decided he would be more valuable as a witness than as a defendant."