Lawyer for Police Officer Accused of Rape Gets in His Last Words

Lack of physical evidence and an alleged victim with a hazy memory means there's enough reasonable doubt to acquit two New York police officers of rape, said a defense lawyer in his last remarks to the jury Friday.

Closing arguments have begun in the trial of Officers Kenneth Moreno and Franklin Mata, who were charged with raping an intoxicated East Village woman in December 2008 after helping her into her apartment.

The woman testified she passed out on her bed and then woke up to being raped. Moreno admitted on the stand he lay in her bed with his arms around her, but insists they never had sex.

Moreno's lawyer, Joe Tacopina, reminded jurors there was no DNA evidence connecting either men to a rape -- nor was there any evidence a condom was used.

"No semen, no lubricant and no injuries -- means no sex," said Tacopina.

The woman said she took a shower the next morning, but Tacopina said that still wouldn't have eliminated any DNA inside her. He had even asked her on the stand if she had douched that day, and she said she hadn't.

Tacopina argued that it would be ludicrous if prosecutors tried to claim the officers cleaned their DNA evidence from the apartment. Investigators found the DNA of other men in the woman's bed, the defense lawyer said, so Moreno would have had to be able to distinguish his DNA from the others'.  

Some redness was found on the alleged victim's cervix, but experts have testified that that redness could have been caused by a virus, bacteria or even a speculum during the physical examination.

In order to prove rape, Tacopina explained to the jury, prosecutors have to show sexual intercourse occurred and that the woman could not consent because she was too physically helpless.  

The defense said there was plenty of evidence rebutting physical helplessness. Security video footage revealed her walking and talking to the officers as they entered her apartment building shortly after 1:00 a.m. A resident who passed them on the staircase testified that the woman was walking unaided up the stairs. Tacopina said she was lucid enough to give the cab driver her address and the police officers her name, phone number and date of birth. Presumably, the defense said, she would have gotten more sober as the night wore on.  

And there was evidence the woman had substantive conversations with Moreno. In a secretly recorded conversation between Moreno and the woman outside his station house, the officer mentioned facts about the woman Tacopina said could have only been learned through conversation -- for example, that she was moving to California and that her drink of choice was vodka.

Without physical evidence, the case will turn on the credibility of witnesses. Tacopina hammered into the jury how many black-outs the alleged victim said she had that night. How credible can she be, Tacopina asked, if she couldn't remember the most basic things, such getting in a cab, walking into her apartment or talking to the officers?

"She tried to connect the dots and she got it wrong," said Tacopina.

The defense argued that Moreno certainly didn't act like a rapist. He called the woman a few times after that night -- at one point asking her out to coffee.

Looking straight at the jury, the Tacopina said, "You wouldn't ask your rape victim out on a date."  

Moreno went back to the apartment three times, Tacopino explained to jurors, because he was genuinely concerned about her emotional well-being. Moreno testified he wanted to counsel the woman about her drinking problems.

"His overriding motivation and purpose were pure," said Tacopina.

When the woman later confronted Moreno outside the station house, the woman repeatedly asked him if he had worn a condom. He denied several times that they had sex.  After the woman threatened she would make a scene, he said "yes" twice when she asked whether he'd used a condom. But Moreno testified that he said that only to calm her down and avoid a commotion.

The woman is also suing the city for $57 million over the incident.

Moreno, 43, has been a police officer for 17 years. Mata, 29, has served for about five years. They have been suspended until a police department review after their trial.

Officer Franklin Mata's closing argument will begin next Monday. Then prosecutors will sum up their case.