RAPE JURY’S TOUGH QUESTION

RAPE JURY’S TOUGH QUESTION
By CHRISTOPHER KILBOURNE
Staff Writer
After 11 weeks and 21 witnesses, the outcome of the Glen Ridge rape trial appears more and more likely to hinge on two words: mentally defective.
Four of the counts against defendants Bryant Grober, 21, Christopher Archer, 20, and twins Kevin and Kyle Scherzer, 21, charge that they forced or coerced the mildly retarded girl to submit to sex acts that included penetration with a broomstick, fungo baseball bat, and a small stick.
But as the trial resumes Monday, the evidence so far -- including the accuser's own testimony -- has left ample room for the jury to have reasonable doubts about whether any force was used during the March 1, 1989, incident.
Jurors have heard taped conversations in which the girl, talking to a former basketball teammate, contradicts her statements to authorities that she was made to perform some of the acts. Under cross-examination by defense attorneys last month, the alleged victim, now 21, said that she never protested or tried to stop the sexual activity, and that she had no desire to leave the suburban basement where the incident took place.
The very next day, however, she told a prosecutor that she was forced to submit to the sex acts.
"OK," she said, matter of factly. "I'll be honest now."
But even if the jury were to find that the girl consented to all of the sexual activity, the defendants still would not be off the hook. Four of the nine counts in the indictment charge that they committed sexual assault and criminal sexual contact because the girl was "mentally defective" under New Jersey's sexual-assault law, and the boys knew or should have known that they could not lawfully engage in sex with her.
The ninth count charges the defendants with conspiracy.
When the trial resumes Monday after an 11-day recess, psychiatrist Gerald Meyerhoff will be on the witness stand, defending his opinion that the girl was unable to legally consent to sex with the high school athletes. Meyerhoff and psychologist Susan Esquilin both have testified for the prosecution that the girl was mentally defective because she did not comprehend that she could refuse sex with the boys, whom she considered to be her friends.
A defense psychiatrist, Frank Riccioli, is expected to testify later this month that the girl was not mentally defective.
Jurors ultimately will be asked to sort through the months of testimony to determine which of the experts were right. Depending on what they decide, they then may have to determine whether the defendants -- then ages 16 to 18 -- should have been aware of a mental condition about which the doctors could not agree.
Even the state Supreme Court, which specializes in such hair-splitting, has conceded that the jury's determination at best will be "difficult and subtle." The court wrestled with the issue when it defined mental defectiveness in State v. Olivio, a 1991 decision that attorneys in the Glen Ridge trial say is the blueprint for their case.
The justices made it clear that mentally retarded is not the same as mentally defective, and that the Legislature, when it amended the law in 1983, did not intend to prevent the mildly retarded from engaging in consensual sex.
The court held that a person is mentally defective if, at the time of the sexual activity, "the mental defect rendered him or her unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another."
The defect can be either permanent or temporary, and juries should be instructed that an alleged victim's capacity to understand and consent to sexual conduct "must be considered in the context of all of the surrounding circumstances in which it occurred," the court said.
The justices declined to extend the law's protection to people who do not understand the consequences of sex -- such as pregnancy or disease -- or who have no grasp of the moral or societal implications of sex. The court found that broader definitions adopted in some states have tended to be unworkable or unconstitutional, and that "this expansive view, which is arguably overly protective of mentally handicapped persons, appears never to have been the one the Legislature envisaged."
The court ordered a new trial for Freddie Olivio, a 43-year-old Passaic resident who was convicted of having sex with a 16-year-old retarded girl whom he knew or should have known was mentally defective. The appellate court had reversed Olivio's conviction, ruling that the state had not proved that the girl was mentally defective, and that there was no evidence that Olivio knew or should have known of her mental condition.
But the Supreme Court disagreed with the appellate panel, saying that there was sufficient evidence for the jury to have found that the girl was mentally defective and that Olivio knew or should have known it, but that the judge had failed to adequately explain mental defectiveness to the jury.
That could be an ominous statement for the Glen Ridge defendants, in view of the strikingly similar mental and social abilities of the alleged victims in the two cases. There were, however, some significant differences between the two girls, particularly about their knowledge and experience regarding sexual matters.
A potentially crucial factor in the Glen Ridge jury's determination of the mental defectiveness issue will be the instructions given by Superior Court Judge R. Benjamin Cohen, and how closely the jury follows those directions. Under the Olivio ruling, Cohen must explain mental defectiveness in the context of all the evidence in the case that "relates to the complainant's mental condition and conduct."
The prosecution and defense teams both say that Cohen, an intelligent and attentive judge, is well-suited to the task. And, at least for public consumption, they say they are confident that the jury will thoughtfully and thoroughly follow the judge's charge.
But both sides have registered concern at the occasional inattentiveness of some jurors and, even more disturbing, the seemingly inappropriate laughter and conversations that have taken place among jurors during sidebar conferences and the testimony of some witnesses, including the alleged victim.
Some of the defense attorneys have privately expressed apprehension that the jury may not be able to get past the shocking nature of the incident. The defense has not denied that oral sex took place, or that the girl was penetrated with the broomstick and bat. Jurors have heard compelling, if conflicting, testimony by the alleged victim, and they have seen the stark contrast between her and the handsome and popular defendants.
The fear is that the jury might return a verdict based more on moral outrage than on a careful application of the law to the facts of the case.
"I always felt that the case hinged on her mental condition," said defense attorney Alan Zegas. "I never thought that force would be a central issue in the case."
Prosecutors, however, have by no means given up on the charges that the defendants forced or coerced the girl into the acts. Their hope is that the jury will see her inconsistent testimony as supporting the charges that she was mentally defective rather than undermining the coercion charges.
The state has depicted the basement setting of the incident as an inherently coercive atmosphere in which the suggestible girl was surrounded by 13 strapping athletes, some of whom allegedly were egging her on and, at least for a time, blocking her path to freedom up the narrow stairway. Prosecutors are heartened by a pretrial ruling in the case, in which an appellate court panel found probable cause that the girl was coerced into the activity.
(SIDEBAR)

THE STATE'S CASE
The following are some of the key factors supporting the prosecution's claim that the accuser in the Glen Ridge case was mentally defective and that the defendants knew or should have known of her condition:

In State v. Olivio, the New Jersey Supreme Court ruled in 1991 that the jury could reasonably have found that the alleged victim was mentally defective. The mildly retarded 16-year-old girl in that case had an IQ of 65; was classified as "educable mentally retarded"; and was described as slow, forgetful, and functioning socially at the level of an 8-year-old. The mildly retarded 17-year-old girl in the Glen Ridge case had an IQ of 64, was classified as "educable mentally retarded," and was described as slow and forgetful with the social skills of an 8-year-old.

In the Olivio case, the defendant had known the accuser for a relatively short time, yet the Supreme Court said that the jury could reasonably have found that he knew or should have known of her mental defect.

Three of the four Glen Ridge defendants had known their accuser since early childhood. The fourth defendant, Bryant Grober, had known her since middle school. Witnesses testified that the defendants were aware of the girl's suggestibility, and that twins Kevin and Kyle Scherzer were present when the girl was tricked into eating dog feces at the age of 5 or 6.

A psychiatrist and a psychologist have testified for the state that the girl was mentally defective because she did not comprehend that she could refuse to engage in sex with the boys.

Despite numerous inconsistencies in her testimony, the Glen Ridge accuser steadfastly maintained in direct testimony and in cross-examination that she could not refuse a request from a friend.

THE DEFENSE CASE
The following are some of the key factors supporting the defense claim that the accuser in the Glen Ridge case was not mentally defective, or that the defendants could not not have known of her condition:

In ruling that the complainant in the Olivio case may have been mentally defective, the Supreme Court noted that she described sexual organs "in the vocabulary of a very young child," and said that the jury could have concluded that her understanding of sexual conduct was "incomplete and inadequate even with respect to the physical aspects of sex." The Glen Ridge complainant demonstrated a knowledge of both "didn't do Kyle [Scherzer]" because she "didn't want to." She testified at trial that she willingly participated in the sex acts and did not want to leave the basement. The defense contends that those statements show she understood her right to refuse and even exercised that right with respect to one of the defendants.

The girl testified that she would not have performed the acts if an adult had been present. She also testified that she knew she could become pregnant or contract a disease from engaging in sex. Those statements, according to the defense, show that she had a level of understanding of sex well above that envisioned in the Supreme Court's definition of mental defectiveness.

A defense psychiatrist is expected to testify that the girl was not mentally defective. The defense argues that if dispassionate experts disagree on the issue, it is unreasonable to expect teenagers to be able to make that determination.