NYPD and Sexual Assault: What Now?

Surprisingly to some, not all prosecutors like police officers. Many see them as dubious moral arbiters with too much power. Necessary, perhaps, but not to be trusted. I don’t have this view; cops are a big part of why I was drawn to law enforcement. I’ve been blessed, in Virginia and New York, to have worked with and befriended some of the best, most decent, heroic and dedicated professionals I’ve ever known in uniform. But over the years I have developed a more or less binary view of policemen and women: A good cop is a treasure, and one of the things that holds a decent society together in a very real sense.  A bad cop is a menace. He rips at the same societal fabric more directly than elected officials, judges, or anyone else in the system. For better or worse, cops work where the rubber meets the road. They interact with the public intimately, and when they betray that public, it’s unforgivable.I’m occasionally challenged by people (most of them not cops, by the way) who accuse me of setting an unrealistic standard for a profession particularly when I’ve never had to do the job. I simply shrug. I’ve known too many cops who deal with the pressure and the misery and still maintain their integrity. And I’m sorry, but the stakes are too high. Police officers are imperfect and expected to be. I don’t write them off for the kinds of moral failures we all struggle with. But I can’t stomach cops who lie, bully, sell their badges or worse, and on the rare occasions when I saw behavior like that as a DA, I called it out.For Kenneth Moreno and Franklin Mata, the two NYPD officers acquitted of rape in Manhattan last week, the term “disgrace” isn’t strong enough, and neither is “menace.” I don’t personally know Coleen Balbert, the principal ADA on the case, but I have worked with DANY’s (District Attorney, New York County) sex crimes unit over the years and I know it to be professional and highly skilled. From media reports, I gather that Balbert and her team did an excellent job.In particular, I have worked closely with Karen Carroll, the Sex Assault Nurse Examiner who was called to explain the significance of the cervical injuries the victim suffered. Carroll is one of the most respected and astute SANEs in New York State and testifies with a skill and presence that is remarkable to see. On that issue at least, I can say personally that the team brought in the very best. Additionally, the victim’s testimony was apparently consistent and compelling. Moreno admitted to using a condom in a recorded conversation with her. Both defendants made asinine and offensive statements in testimony, and Balbert appears to have made the most of them on cross. There was virtually no question they committed relatively minor offenses as a part of their plan to victimize her (and were actually convicted of them). Their excuses for how they acted, Moreno’s explanation in particular, was laughably insulting.But for the rape charges, it wasn’t enough.The jurors who have spoken appear to have wanted more, particularly DNA evidence, which has led many to speculate that the prosecution was undone by the so-called “CSI effect” where juries expect and demand physical evidence to prove the case to a scientific certainty. The use of a condom explains a lack of DNA as I’m sure was made clear. Likewise, I imagine the jury was instructed that testimony by itself and without more is evidence enough to convict if it’s considered sufficiently convincing. Still, jurors appear to have reduced the facts to a “he said-she said” stalemate despite explanations and excuses that seemed ludicrous.One thing that might have cost the prosecution is the timing of the victim’s multimillion dollar civil suit against the city.  It’s not inappropriate if she has a strong case, but most DA’s prefer it when a victim waits until the criminal case ends before suing civilly. Otherwise, a “gold digger” defense can be peddled exactly as it was here. That scenario- a woman who seduces an authority figure of some kind and then seeks a payout by crying rape- is remarkably rare, but it’s a common and persistent rape myth that wins cases. Couple it with a woman who was out drinking, allegedly dimming her perception and probably costing her credibility, and it’s less difficult to settle on a ‘not guilty’ verdict.There’s time now for the ADA’s involved to reflect on what could have been done differently, and if they’re anything like me they’ll do so for quite a while. What’s more important, though, is that they had the courage and respect for the victim to go forward, not only for her but for the entire community. That’s what courageous DA’s do, and that courage is harder to summon in sex cases than most other types of crime.As for the NYPD, it is probably the most wounded entity in the aftermath of this crime after the victim herself. Commissioner Kelley did the right thing here, but his institution must remain on its highest guard against menaces like these two, one of whom was on the job 17 years. Criminals like Moreno and Mata don’t always provide warning signs to their superiors in the form of various kinds of lesser bad behavior, but they often do. I have no idea if they did in this case, but the NYPD would be well advised to comb through the records and pasts of both of these men in search of missed clues. Going forward, that information might prevent another damaging black eye for an otherwise good and respected department.There are nearly 40,000 sworn NYPD officers, the vast majority of whom shouldn’t be stained with the actions of these two. More importantly, there are literally millions of women in New York who shouldn’t be afraid to place themselves in the care of the NYPD when they are in need, regardless of how the need arose. But for the time being, fear is exactly what many women will experience when police approach offering help. It’s up to the NYPD to do its level best to reverse that fear and continue to do what it does best.