Fears of juror biases often prevent rape cases from making it to trial, Cuyahoga County prosecutors say

10-25-2010 Ohio:

CLEVELAND, Ohio -- One factor can trump all others when prosecutors are deciding whether to take a sex assault case to trial or to give the accused a plea deal: the public's preconceived notions of what constitutes rape.

More than most crimes, rape stirs emotions within the public consciousness and prompts gut reactions to the circumstances and characters involved. Prosecutors often feel they have to review their cases with consideration to how the facts might play on a jury. And that means many cases are never brought to trial or are pleaded down to lesser charges or sometimes to non-sex-related offenses that exempt the defendant from having to register as a sex offender.

According to a Plain Dealer analysis, defendants accepted plea deals in about 70 percent of the 2,477 sex crimes cases indicted in Cuyahoga County between 2004 and 2008.

Of those, more than 18 percent pleaded guilty only to non-sex offenses. And among the minority of cases that were decided by juries, about 18 percent of defendants were acquitted of all sex charges.

Consider the case of Jayson Murphy, whose guilt or innocence hinged on whether a Cuyahoga County jury believed his story or his former girlfriend's.

Murphy did not deny that he took photos of his naked, unconscious girlfriend, presumably drugged, lewdly posed with sex toys and his dirty underwear draped over her face.

But for months before that night last fall, the couple had been having kinky consensual sex, role playing and snapping photos. For a panel of Cuyahoga County jurors, what they labeled "implied consent" was enough to acquit Murphy of rape.

"She was a hypocrite," one juror said in an interview after the verdict was announced. "If she didn't take those photos originally, I would have been more in her favor. But their relationship was all about lust and infatuation and role playing. That was a big factor."

Looking to plant seed of reasonable doubt

Jurors, as community members, often adopt biases and expectations of appropriate behavior by victims before and after reporting a sexual assault and during the attack itself, said Lisa Frohmann, a Chicago-based sociologist who has studied prosecutorial decision-making in rape cases.

"Jurors make assumptions about women who are from a different socioeconomic background or who might lead a lifestyle they deem unsafe or inappropriate but is completely acceptable in communities with lots of poverty or drugs," Frohmann said. "Society tends to have ideas about who really can be raped, what a real rape victim is."

Assistant Cuyahoga County Prosecutor Dave Zimmerman, major-trials supervisor under Prosecutor Bill Mason, said every element of the victim's story and lifestyle -- whether she uses drugs, had consented previously to sex with her attacker, willingly let him into the house or waited days before reporting the assault -- can become fodder for defense attorneys looking to plant the seed of reasonable doubt in the minds of jurors.

Under Ohio's Rape Shield law, evidence of a victim's past sexual activity or reputation of promiscuity cannot be admitted into trial. However, pregnancy, disease or semen from a source other than the defendant can open the door for defense lawyers to grill the victim on her sex life.

And unless the defendant chooses to testify, judges often ban prosecutors from presenting evidence of a defendant's prior convictions -- leaving the victim's behavior exposed to greater scrutiny than the offender's.

Murphy took the stand in his own defense, so jurors learned of his 2001 attempted domestic violence conviction. But they were unaware of a rape accusation against him that never made it past the grand jury in 1993.

Trying to figure out which strategy is best

In most sexual assault cases, the victim knows her attacker. So jurors tend to dissect the nature of that relationship in the deliberating room, Zimmerman said.

Prosecutors seek to detect biases during the jury selection process, when lawyers ask questions to vet the pool of potential jurors for their opinions on issues germane to the case. But truthfulness is not always guaranteed. Defense lawyers, as they did in the Murphy case, have the power to strike from the panel any juror who might have a personal connection to a sexual assault victim and understands the complexities of prosecuting such crimes.

Often, offering the defendant a plea deal not only spares the victim the trauma of reliving the attack on the witness stand, but it also means the defendant won't get away without a conviction, Zimmerman said.

"As a trial strategy, I'd rather have a plea than a not guilty," Zimmerman said. "It brings some satisfaction to the victim. And sometimes, going to trial to have the defendant register as a sex offender is not worth the risk of him being found not guilty."

But plea agreements carry their own risks

Such was the case in 2007, when Steven Othberg, then 21, was accused of molesting a 5-year-old girl whom he was entrusted to baby-sit.

The case made it past a grand jury and was indicted. But evidence was scarce, the young victim's story was inconsistent, and prosecutors worried that the lifestyle of the victim's parents would make a bad impression on the jury. The girl had two mothers, one of whom worked as a drag king at a local gay bar and was headed to work a late-night shift when Othberg baby-sat.

Prosecutors offered Othberg a chance to plead guilty to endangering children. As part of the plea, a sexually violent predator specification was dropped. And Othberg, who was sentenced to the single day he already had served in the County Jail, was free to go without the stigmatizing sex offender label.

But shortly afterward, he moved to Arizona, where he made a 3-year-old Scottsdale boy take off his clothes and Othberg -- again, the baby sitter -- touched him. Prosecutors had no trouble proving their case this time; Othberg had taken photos on his cell phone. In 2009, he was sentenced to 10 years in prison and was placed in Arizona's most dangerous tier of sexual offenders, required to register and wear a GPS tracking device for life.

Zimmerman, who signs off on the decisions that assistant county prosecutors make, said that, at the time, he made the best possible call based on the circumstances of the case, the weaknesses in the victim's testimony and the overall low likelihood of conviction on a rape charge.

"We make those tough decisions every day," Zimmerman said. "We do right by our victims and the community, and we believe in our cases. Knowing that a person is free who we believe committed a violent act -- that hurts. But sometimes there's nothing we can do about it, besides hope we'll get him the next time."

A move to ban plea deals in sex offense cases

One state legislator in New York says that's not good enough. After conducting his own study of sexual assault case dispositions in his district, Assemblyman Richard Brodsky proposed a bill that he says is designed to prevent tragic conclusions like that in the Othberg case.

The bill would prohibit prosecutors in New York from offering plea deals in sex offense cases altogether, forcing them to take the case to trial, indict on lesser crimes or drop the charges.

"There are times when it makes sense to offer a plea agreement for some kinds of crimes," Brodsky said in a recent interview. "But there are many more times when really bad guys plead out of the sex offender category, we give them a 'get out of jail free' pass, then they come out and do it again."

Brodsky said that if prosecutors have enough evidence to indict a case, they should have enough to take it to trial. He argues that prosecutors plead out weak cases only because they don't want a loss on their records.

Assistant Cuyahoga County Prosecutor Anna Faraglia, who handled the Murphy case and has spent the past decade prosecuting sex crimes and murder cases, dismisses Brodsky's reasoning. She argues that banning all plea deals is insensitive to the needs of victims, could lead to backlogs on the docket and in the end means guilty defendants will walk.

"It's a whole different perspective when you're on the outside looking in," Faraglia said. "People don't know what goes into a plea. It's not because we don't think we can go forward. But it's also not as open and shut as it seems on TV. We're dealing with human emotions and sexuality and relationships. And at the end of the day, it's all about the 12 people you put in that box."

It all comes down to what jurors see, think and feel

Although jurors acquitted Murphy of rape, they convicted him of four counts of sexual battery -- a charge that carries a much lower burden of proof. Prosecutors had to show only that sexual conduct occurred, that the victim was substantially impaired and that the couple were not married.

Common Pleas Judge Peter Corrigan sentenced Murphy to 20 years in prison and labeled him a Tier III sex offender, required to register every 90 days for life. The judge said in a recent interview that he took into consideration Murphy's record and what appeared to be a dangerous and escalating pattern of crimes against women.

But that information was largely unavailable to jurors, who said they considered other factors in their decision to acquit on the rape charge.

One juror pointed out that the couple started dating after they met in traffic court, a dubious place to find a mate. They smoked marijuana together and shared a sexual relationship that included text messaging each other photos that were so risque, they made jurors blush with embarrassment to review them in the jury room.

"I can't believe some of the stuff that goes on -- what some people do," said one juror, who was in his 70s. "There are so many words that I've spoken this week that I had never even heard before."

Although Faraglia said the victim broke down in tears upon leaving the courtroom, some jurors said after the trial that they didn't feel the victim was emotional enough during her testimony.

She seemed more embittered by the relationship than traumatized by the attack, they said. Jurors admitted that the case did not fit with their prior perceptions of rape.

Many on the panel had agreed with Faraglia during jury selection that someone who is unconscious cannot issue consent.

But some later said they still struggled with the notion that a woman could be raped by someone with whom she previously had consented to more graphic sex than what occurred on the night in question.

"My idea of rape was always intimidation, violence, bruises," one juror said. "Nothing like this -- with two people who just met, living together and sexing each other on a consistent basis. She tried to present herself as the victim all the time. But if he didn't show her the pictures he took with his camera, who knows? She probably would still be with him." ..Source.. Leila Atassi, The Plain Dealer