Enduring third day of brutal questions
WARNING: Contains graphic content
First thing the sexual assault complainant did — a mistake — was shower.
To remove the vomit in which she’d been lying face down, the dried ejaculate in her hair, the trace stench of intimate violation upon her body.
As, indeed, some of us who’ve been in the courtroom this past week feel a similar urge to bathe immediately upon departing the premises. Wash off the ugliness. Because the assaults continue. Not rapes and forcible fellatio, which the woman claims occurred in the early morning hours of Jan. 17, 2015. But the assaults on her character, on her recital of disputed facts, on the statements given to investigators, on comments made to a nurse, on medical records, on texts sent to a cop colleague and to friends, on testimony elicited under oath.
Cross-examination is always an ordeal. Never, though, as brutal as when a sex assault complainant is on the stand.
At this judge-alone trial, objections from the prosecution have been few and mild. It’s been Justice Anne Molloy, rather, directing a modicum of restraint from the bench.
Such as Friday, when Molloy took exception to some of the text contents that defence lawyer Harry Black intended to put to the witness and argued in her absence.
Sexting, as Black described the communications, which indeed had a sexual subtext in the to-and-fro suggestive repartee between complainant and a cop acquaintance.
“They’re flirtatious at best,” Molloy told Black. “I don’t accept your argument that this is relevant to if she was sexually assaulted. That is walking straight into the stereotypes and rape myths of how a woman is going to behave, and that is not appropriate.”
Molloy had a few sentences removed before Black could read the texts. Those texts were disclosed after a ruling by a different judge, in a pretrial hearing related to a thirdparty records application — that contents of the complainant’s cellphone should be turned over to the defence.
Likewise, when Black asked the witness about an Internet search on her phone that she’d done about date rape drugs, specifically Rohypnol — this two days after the alleged sex assault — he was sharply rebuked. Black had just said to the witness: “You do know that you tried to prevent the defence from getting this, don’t you?”
A no-fair groan went up from the prosecution. Molloy: “That’s not appropriate.” Turning to the witness, she added: “Don’t answer the question.”
Molloy had already questioned the scope of queries Black raised while probing the veracity of texts the witness had sent to a girlfriend — texts that had nothing to do with the alleged assaults; were about remarks the witness had made about a dinner with another cop and which, on the stand, the complainant admitted were false. (There was no dinner.)
“Are you the kind of person who finds it easy to tell lies, even to a close friend?” asked Black.
Molloy, disapprovingly: “You’re asking about her general character and her propensity to tell lies.”
Black: “Your Honour, are you not happy with my question?”
Molloy: “It’s not going to make any difference to me.”
Doubtless this trial would be conducted differently had it unspooled in front of a jury, as originally planned. The defendants changed their minds about that when the trial was set to begin last week, triggering a strategic delay. With the ultimate verdict solely in the hands of a veteran judge, Molloy is not required to protect a jury’s ears from inadmissible evidence. She alone will weigh that evidence.
Black is the lead lawyer representing Leslie Nyznik. Constables Nyznik, Joshua Cabero and Sameer Kara have all pleaded not guilty on a charge of sexual assault. The alleged victim — her name is protected by a publication ban — was a parking enforcement officer working out of 51 Division with the accused when the purported assault occurred in a downtown hotel room following a night of pub-crawling.
The complainant insists she never consented to sex with the officers; that they compelled her into having oral sex and intercourse and she, possibly drugged at some point in the evening, had been unable to stop them.
It’s been illuminating, and dismaying, to see what tactics are permitted for a defence attorney at a sex assault trial. Medical records? Go ahead. The “revealing” clothing a complainant was wearing? Go ahead. Accusations of full-bore mendacity? Go ahead. Spinning a counter-narrative based on the accounts of the accused — who may or may not ever take the stand — whereby the alleged victim was actually the give-it-to-me architect of that orgy? Go ahead.
This lengthy exchange, for instance, when Black cast scornful doubt on the witness’s claim, under direct examination, that she was “terrified” of reporting the incident to her supervisor and to investigators from Professional Standards.
“You were in a state of panic, because you were reflecting on choices that you had made that night.” The witness disagreed. “I’m going to suggest to you that you were thinking, ‘What if it gets out that I actually propositioned a police officer at the Brass Rail to have sex with me, in front of a table of other people?’ That was a concern of yours wasn’t it?”
Witness: “That’s not what happened.”
Black: “And that you then had sex consensually with three police officers in that room.”
Witness: “At no point in time did I consent.”
Black: “That you were outraged by the fact that immediately after you had sex with these three men, they begin talking about whether they’re going to bring (a) stripper back (to the hotel room.) How did that make you feel?” Reword that, interjected Molloy. The witness responded that when she “processed that later, it didn’t make me feel good.”
Black: “I’m suggesting to you that what happened in the early morning hours of January the 17th was that you . . . were filled with regret about what you had done and you were in a panic about what was going to happen to your reputation if word got out that you had intercourse with three officers from 51 Division . . .” Witness: “I did nothing wrong.” Black: “. . . and you also felt that you could possibly lose your job over this.”
Witness: “I feared losing my job over reporting this.”
Black: “Well, I’m suggesting that early in the morning hours of Jan. 17, you started to create a narrative that would essentially render you blameless and not responsible for anything that happened in that room.”
Witness: “I’m not responsible for anything that happened in that room.”
Two days under cross from Black. Now Kara’s lawyer can have at her. Then Cabero’s lawyer.
Remarkable, really, what a cry-rape woman would willingly subject herself to, as a lying, scheming scapegrace. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.