Wednesday, June 1, 2011
"As a feminist it really challenged my values to vote not guilty," an emotionally spent Hernandez told Women's eNews in an exclusive telephone interview on May 30.
In particular, she was concerned about the way forensic evidence--in a case concerning police as perpetrators--went through the New York Police Department lab instead of the New York Medical Examiners lab or an independent lab. "I think they should have hired an independent person to collect the evidence," Hernandez says. "There's just common sense behind that."
While acquitted of the rape charge, the two officers--Kenneth Moreno, 43, and Franklin Mata, 29--were convicted last week of official misconduct and fired from the force the same day. They will be sentenced by the State Supreme Court on June 28 and each face up to two years behind bars. Had they been found guilty of rape, the pair could have been in jail for up to 25 years.
In December 2008, the accuser celebrated a job promotion in a Brooklyn bar and became intoxicated. After drinks at the club, she took a taxi to her apartment building in downtown Manhattan and the taxi driver called the police to assist her out of the taxi and up to her fifth-floor walk up. Moreno and Mata responded. Videotapes from security cameras indicated the two police offers returned three more times to her apartment that night.
Hernandez says the woman testified that she was passed out and lying on her stomach and awoke to being penetrated by a penis. Then she passed out again. During the trial, she says it was revealed that Moreno was in the room with her and Mata was said to have been sleeping on her couch.
During a controlled meeting--initiated by the internal affairs department of the New York Police Department--Moreno was confronted by the victim, who was wearing a recording device, outside the 9th precinct. She told him that they took advantage of her. He denied the accusation many times. She told him that she awoke to him having sex with her. Again, he denied anything had happened.
It wasn't until the woman threatened to go into the precinct and make a scene that Moreno admitted to wearing a condom. He also assured the woman that she "didn't have to worry about getting any diseases." She asked if it was the two of them and Moreno told her it was just him. Moreno later claimed that he had said that to get her to leave him alone.
The verdict set off a storm of controversy in New York City, with a large demonstration led by members of the City Council's Women's Caucus, the New York chapter of the National Organization for Women, Feministing and Permanent Wave.
Here are Hernandez's reflections on the case. She spoke from an undisclosed location as she continued to avoid her own home due to pressure from news media for an interview. Three central features of the case led her to cast her "not guilty" vote: the lack of any evidence gathered from the accuser's apartment; the nature of alcohol-induced blackouts as described by an expert witness; and an absent key witness.
Q: Why are you choosing to speak with Women's eNews?
A: I felt it was just safer. You are produced by women for women and you won't print things I didn't say or add drama.
Q: We see that you've been quoted somewhat in the press, to the extent of a comment about being emotionally drained.
A: I never gave an interview. Someone came to the front desk of my apartment building and told the concierge that she was there to visit me. I was contacted on my cell phone by the concierge. I asked to speak with the woman. She turned out to be a reporter. I told her I was too upset to speak with anyone about the case now. The media even showed up at my parent's house. I haven't even been home yet. I'm staying somewhere else.
Q: What was the composition of the jury; how many men and how many women?
A: Five women and seven men, a good balance. From the beginning--at the first vote the panel took when it began its deliberations--it was nine to three; nine for not guilty, three for guilty. I was among the three who thought the police were guilty.
Q: But you wound up voting "not guilty."
A: It all came down to the forensic evidence. There was none at all. No hair, no semen, no pubic hairs in the evidence collected from the apartment or in the rape kit collected at the hospital. There was a small red patch found on her cervix, but that could have been caused by several things, including penetration by a penis.
There was no solid proof from the evidence collected or the rape kit. Not even fingerprints. Not even fibers from police uniforms. Many pieces of material were taken from the apartment. But there were no fingerprints. There was nothing there.
All the evidence was collected by the NYPD internal affairs investigator and was taken to police crime lab. After it was examined there, then it was sent to the medical examiners lab.
Q: Was there ever any question of police tampering of the evidence?
A: You can't raise that kind of speculation. That's why I think the system failed her big-time.
Q: Wasn't it strange that there was no evidence of the police in her apartment at all since there was no doubt that they had been there?
A: I thought the evidence, in this case, should have gone straight to the medical examiner. At the hospital, when they asked her if she wanted to contact the police, she and her friend said "no way." That just tells you it shouldn't have gone to the police lab.
Q: Why did the prosecutor allow it to go the police?
A: Perhaps that is a question that would be better to ask the prosecutors.
Q: It sounds like inebriation was a major factor in the verdict.
A: It was huge. Her drinking started in the afternoon and ended with several strong cocktails at a club. Her friends should never have put her in that cab by herself. The cab driver couldn't help her get out of the cab which is why he called for police assistance.
Q: The jury tended to believe the police officers? They thought they had more credibility?
A: It's not that they believed the police officers. It is that it was hard to believe her.
She used words like "I believe," "I think something bad happened," "I may have been raped." Then she said, "I was raped by the cops." This was during Grand Jury testimony in 2008. That really hurt her case, because there were holes in her story, again because of blacking out and-or passing out.
We went over the difference between blacking out and passing out. This was explained to us by expert witnesses. You can be walking and talking but not able to remember what happened later. She felt she had been penetrated. The first thing she did, when she got up that morning, was to take a shower. She then went to her friend's apartment, in the same building, wearing a towel around her head and said she wanted to scrub off her skin.
One of her best friends was an attorney and rather than take the case to the police, they got in touch directly with the District Attorney's office. The attorney-friend works for a firm that is now representing the accused in a $57 million lawsuit against the city. I believe she could not be a witness because it might have been a conflict of interest.
Q: So she washed away the evidence? How could you hope to convict if she showered before going to a hospital?
A: During jury selection, right from the start, we were asked if we thought that if there was no DNA evidence that a rape still could have occurred. Every one of us said yes to that.
Q: So then it came down to whose testimony you believed?
A: Belief is not part of what you're instructed to consider. We had to consider testimony, evidence and the facts. There again it was complicated because she was quite drunk.
Q: Did the prosecutor emphasize that a woman who is drunk is unable to consent to sexual activity?
A: I don't believe so, but I'm not sure. In any case, what if the consent comes out of your mouth and you don't remember it because you've blacked out?
Q: The victim remained confident that she had been raped?
A: There was no doubt in her mind about what had happened. A woman knows when she is penetrated. But without any evidence, it couldn't be proven beyond a reasonable doubt. And if there is a reasonable doubt you must acquit.
Q: You sound exhausted.
A: I've shed many tears in this case. I'm a seasoned juror. I've served on nine juries including this one.
Q: Was this your hardest experience?
A: Let's put it this way: "I hope that I'll never be called for jury duty again."
Q: Were you aware of the intense media interest before the verdict?
A: The media was in the courtroom every day. The day of the verdicts the courtroom was packed. After the verdicts were read the jurors asked to be escorted out by a private entrance. That's why the media has been looking for us.
Q: What did you think when you heard about the women's rights protest in New York against the verdict?
A: I'm on the mailing list for NOW, (the National Organization for Women) and I got the e-mail regarding the protest. I was a juror and I am a feminist. This was devastating to me. But I had to do my job and be fair and impartial. A person is innocent until proven guilty. The burden--and it is a burden--remains on the victim. Perhaps if there were women demonstrating outside the courthouse every day it may have helped the jurors be more aware and more conscious of their verdicts. Who knows? Waiting until after the day of verdict was too much too late.
Q: What do you think protests outside the courthouse during the trial would have done?
A: It would have sent a message that women cared about what was going on inside the court, that women believed the victim!
The one positive thing that might come out of this is it could set a fire under women to get out there and show some presence. Women are still not equal under the U.S. Constitution.