The Washington Post

Rape trial to test new wit­ness law in Md.

Mul­ti­ple women may be able to tes­tify to show pat­tern of be­hav­ior

- BY DAN MORSE Crime · Sexual Abuse · Violence and Abuse · Society · Maryland · Montgomery County · Montgomery · Jordan · Nicaragua · Washington · Chevy Chase, MD · Chevy Chase · John McCarthy · Walter Johnson · Bethesda, MD · Walter Johnson High School · North Bethesda, MD · Garrett Park, MD

His most re­cent vic­tim, pros­e­cu­tors say, was a wo­man in her 30s talk­ing with other peo­ple at a bar in Chevy Chase.

Philip Kan­tor ap­proached and of­fered to buy ev­ery­one a round and soon, pros­e­cu­tors say, handed the wo­man a shot of dark-yel­low liquor. Drink­ing it was her last mem­ory for sev­eral hours be­fore she al­legedly woke up in Kan­tor’s apart­ment, where, ac­cord­ing to pros­e­cu­tors, the 46year-old raped her three times while she was con­scious but un­able to move.

The case, which could be heard as soon as this fall in Montgomery County, would test the al­le­ga­tions. But a trial could be no­table for pros­e­cu­tors’ plan to try to use a new Mary­land law that would en­able them to bring in three more women as wit­nesses to re­call sim­i­lar al­leged at­tacks by Kan­tor dat­ing to 2007.

The law took ef­fect in July but is only now be­ing in­voked in cases mov­ing through court­houses.

Af­ter more than a decade of try­ing and amid the #MeToo move­ment, pros­e­cu­tors and vic­tims’ rights ad­vo­cates con­vinced the Mary­land leg­is­la­ture last year to make it per­mis­si­ble to bring ad­di­tional al­leged vic­tims into rape tri­als to show a de­fen­dant has ig­nored other peo­ple’s lack of

con­sent. Sim­i­lar pro­vi­sions are em­bed­ded in fed­eral court tri­als, pros­e­cu­tors say, and in more than 20 states.

Kan­tor and his at­tor­neys main­tain his in­no­cence, and his lawyers say they would chal­lenge pros­e­cu­tors’ strat­egy, which would need a sign-off from a judge.

But to pros­e­cu­tors, the mul­ti­ple ac­counts to in­ves­ti­ga­tors from women who lev­eled sim­i­lar ac­cu­sa­tions show “he is a demon­strated, se­rial rapist,” Montgomery County As­sis­tant State’s At­tor­ney Frank Laz­zaro said in court re­cently.

In two court hear­ings, pros­e­cu­tors also have in­di­cated Kan­tor used drugs to in­ca­pac­i­tate at least some of the ac­cusers. “The same ex­act con­duct,” Laz­zaro said, “al­co­holand drug-fa­cil­i­tated rapes.”

Avail­able court records and recorded hear­ings in the case are silent on whether pros­e­cu­tors have med­i­cal records or blood test re­sults from the al­leged vic­tims to con­firm whether drugs were in­volved.

There have been long-stand­ing con­cerns in the crim­i­nal jus­tice sys­tem over com­bin­ing in one trial ac­counts of sev­eral al­leged crimes that re­port­edly in­volved dif­fer­ent vic­tims at dif­fer­ent times.

De­fense at­tor­neys say the ap­proach shifts pros­e­cu­tors’ bur­den from proof of each sep­a­rate act to prob­a­bil­ity of a pat­tern and should be barred even in cases where an ap­par­ent habit can be shown.

“You don’t get to try a guy for com­pletely sep­a­rate mur­ders just be­cause he used a gun each time,” said David Moyse, a long­time de­fense at­tor­ney in Montgomery County.

But ab­sent the new law, rape pros­e­cu­tors in Mary­land say, they for too long have faced an ob­sta­cle that runs counter to just out­comes: the chal­lenge of con­vinc­ing ju­rors that the in­di­vid­ual vic­tim in a trial had not con­sented to the sex acts, even as pros­e­cu­tors had a string of po­ten­tial wit­nesses who were will­ing but un­able to ap­pear in court to tes­tify about hav­ing faced the same al­leged treat­ment by the de­fen­dant.

“This was com­mon sense. All the law says is that other vic­tims get to come in and say, ‘Yeah, he did the same thing to me, and he still is con­fused about what con­sent means,’ ” said Lisae C. Jor­dan, ex­ec­u­tive di­rec­tor and coun­sel for the Mary­land Coali­tion Against Sex­ual As­sault.

There are lim­its on when the added wit­nesses could be used even un­der the new law.

For de­fen­dants charged with rap­ing an adult, it is re­served for is­sues of con­sent. And judges get a chance to weigh whether po­ten­tial tes­ti­mony is cred­i­ble be­fore al­low­ing it.

At the same time, though, judges have ef­fec­tively been in­structed to open things up, even to tes­ti­mony from wit­nesses who may have never re­ported their al­leged at­tacks to po­lice.

“It’s wildly dif­fer­ent than his­toric Mary­land law,” Montgomery County Cir­cuit Judge David Boyn­ton said at a court hear­ing this year — in a sex­ual as­sault case un­re­lated to Kan­tor — while weigh­ing a prose­cu­tor’s re­quest to al­low tes­ti­mony from an­other ac­cuser.

For nearly four decades, as a judge and be­fore that a prose­cu­tor, Boyn­ton had been con­di­tioned that such tes­ti­mony wasn’t al­lowed. “Now there’s a statute that says all th­ese things that we’ve been pro­hibit­ing for 36 years are fine,” the judge said on the bench.

He even­tu­ally ruled the wit­ness could tes­tify, ac­cord­ing to a record­ing of the hear­ing.

In the run-up to the pas­sage of Mary­land’s law, Jor­dan told leg­is­la­tors that the sys­tem had be­come “out of whack” in rape tri­als.

Coun­ter­ing that view was Ri­cardo Flores from the Mary­land Pub­lic De­fender’s Of­fice, who warned against by­pass­ing “the bedrock con­sti­tu­tional prin­ci­ple” of re­quir­ing proof for in­di­vid­ual events. “Rel­e­vance has been flipped on its head,” he said.

The pros­e­cu­tion of Kan­tor, ac­cord­ing to court fil­ings, is shap­ing up to be an­other test. His at­tor­neys have said they will chal­lenge ef­forts to present tes­ti­mony from mul­ti­ple women within any sin­gle trial.

“How can a per­son fairly de­fend him­self against decade-old ac­cu­sa­tions, es­pe­cially when no timely and thor­ough in­ves­ti­ga­tion was con­ducted?” said Allen Wolf, one of the at­tor­neys.

Un­der Mary­land law be­fore 2018, Mary­land pros­e­cu­tors could try to as­sem­ble a rape trial with mul­ti­ple vic­tims by ar­gu­ing the ac­cused had en­gaged in a “com­mon scheme or plan.” But de­fense at­tor­neys rou­tinely got such pro­ceed­ings bro­ken into in­four di­vid­ual tri­als, where ju­rors would hear only from one vic­tim, ac­cord­ing to pros­e­cu­tors and de­fense at­tor­neys. The break­outs oc­curred be­cause many judges de­ter­mined that a com­mon plan had to ap­ply to the same vic­tim, ac­cord­ing to pros­e­cu­tors.

In Montgomery County, though, pros­e­cu­tors have sig­naled they will use the new law in cases of sep­a­rated tri­als as a way to bring all the vic­tims into each of the tri­als to tes­tify.

“This gives us a new tool against se­rial sex­ual preda­tors,” said Montgomery’s head prose­cu­tor, John Mc­Carthy.

The case against Kan­tor be­gan in late Jan­uary, af­ter a 34-year-old wo­man ex­ited a con­do­minium build­ing in Chevy Chase with scat­tered but ter­ri­fy­ing mem­o­ries of the night be­fore, ac­cord­ing to po­lice and pros­e­cu­tors.

As she would later tell de­tec­tives, she had ar­rived at a nearby bar at 9 p.m., dined and lis­tened to a band. Af­ter the show, as she was speak­ing with oth­ers, a man in an or­ange jacket and blue base­ball cap ap­proached and of­fered to buy them drinks, de­tec­tives said in an af­fi­davit filed in court. When she awoke in a bed hours later, not know­ing where she was, she felt par­a­lyzed as the man was as­sault­ing her, ac­cord­ing to the af­fi­davit.

She told de­tec­tives she again passed out, awak­ing to what she thought were flashes, the af­fi­davit re­counts. At some later point, as de­tec­tives wrote of her ac­count, when the wo­man was alert enough to try to look for her clothes, the man, who gave his name as Phil, helped her gather them and walked her from the con­do­minium to out­side, where she even­tu­ally got into a cab on her own and went home.

The wo­man then went to a hospi­tal, where she un­der­went a sex­ual as­sault exam and was checked for swelling in her knees, the af­fi­davit states.

She re­turned home af­ter the hospi­tal visit, po­lice say, and be­gan an In­ter­net search on the lit­tle she knew about “Phil” — his first name and the street lo­ca­tion of his condo build­ing.

What ap­peared in her search, ac­cord­ing to her state­ment to po­lice, was Mary­land’s of­fi­cial Sex Of­fender Reg­istry and a page and pic­ture for Philip Mauri­cio Kan­tor, who had been on the reg­istry since 2005 for two con­vic­tions of third-de­gree sex of­fense that “in­volved crim­i­nal sex­ual con­duct with an un­der­age mi­nor.”

The wo­man called the hospi­tal, ac­cord­ing to court records, and asked staff there to call the po­lice.

De­tec­tives in­ter­viewed her, re­viewed sur­veil­lance video from the ex­te­rior of the build­ing where Kan­tor lives, and got a search war­rant to look through his apart­ment, ac­cord­ing to po­lice and pros­e­cu­tors. They found the wo­man’s miss­ing iPhone, on which there were pho­tos of the wo­man al­legedly taken by Kan­tor “in sex­ual po­si­tions, clearly un­con­scious,” Seth Zucker, a prose­cu­tor, said in court.

News re­ports of the ar­rest drew at­ten­tion and prompted ad­di­tional women to con­tact po­lice, ac­cord­ing to court records. Their al­le­ga­tions in­volved in­ci­dents in 2007, 2010 and 2011.

The 2007 case had been in­ves­ti­gated be­fore. That year, a 24-yearold wo­man re­ported to po­lice that she had gone to a bar with a friend in the District where a man in­tro­duced him­self as “Felipe.” Her next mem­ory, she told po­lice at the time, was wak­ing up in a strange bath­room at a home in Montgomery County — vom­it­ing and in pain. That year, Montgomery po­lice charged Kan­tor with se­cond-de­gree rape, court files show. But the case was dropped three months later by pros­e­cu­tors be­cause “there was in­suf­fi­cient ev­i­dence to proceed,” Laz­zaro said in court re­cently, adding that re­open­ing the case has yielded new ev­i­dence.

A na­tive of Nicaragua, Kan­tor was adopted by a Montgomery County fam­ily, grad­u­ated from Wal­ter John­son High School in North Bethesda, and spent eight years work­ing at a day-care cen­ter in Gar­rett Park, ac­cord­ing to Montgomery County Cir­cuit Court records. He also has worked as a door­man and bouncer at restau­rants and a la­borer for a the­ater in Wash­ing­ton, court records show.

Over the past two weeks, po­lice and pros­e­cu­tors have made moves to set up a sin­gle trial for Kan­tor, ob­tain­ing a sin­gle in­dict­ment that charges him in al­leged rapes in 2019, 2011, 2010 and 2007.

In turn, Kan­tor’s lawyers said they would ask the court to break the case into four tri­als, a move le­gal ex­perts in Montgomery pre­dict they would win.

But as pros­e­cu­tors have said in court, they would en­list the new law to try to bring all four wit­nesses into each trial. They also said they may bring in ad­di­tional al­leged vic­tims whose ac­cu­sa­tions may never have yielded ar­rests or crim­i­nal charges.

“All of this would have been un­heard of in Mary­land,” said Moyse, the long­time Montgomery County de­fense at­tor­ney, “be­fore the new law.”

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