HBO Outtakes Could Get a New Trial for Ex-Cops

MANHATTAN (CN) - Two former New York City cops acquitted of charges that they raped and burglarized a drunken woman while she lay unconscious in her apartment announced plans at a brief hearing Tuesday morning to fight their misconduct convictions.

The cops' attorneys claimed that their case for a new trial on the minor counts may get a boost with outtakes from the HBO documentary "Sex Crimes Unit," which taped an interview with prosecutor Coleen Balbert.

After the verdict, the New York City Police Department stripped former Officers Kenneth Moreno and Franklin Mata of their badges, and they still face up to a year in prison for each of their three misconduct convictions.

Since the Probation Department recommended a non-jail sentence, however, attorneys for the cops said their clients may escape incarceration entirely.

Their accuser, who continues to press rape charges in civil court, wants to speak at the sentencing hearing next month, but the cops' defense attorneys said that the law does not entitle her to that forum.

That right is reserved for victims of felonies only, defense attorney Joseph Tacopina said Tuesday.

"She's not the victim," Tacopina said, drawing not-quite silent reprobation from women's advocates in the courtroom.

After the hearing, Tacopina told reporters that his clients were convicted of misdemeanors. Under the charge they are contesting, the "victim" of their misconduct is the NYPD, not the accuser, he claimed.

"She's had her day in court," Tacopina said. "She's had plenty of time to speak."

A jury found that Moreno and Mata broke the law on Dec. 7, 2008, by entering a woman's apartment multiple times without alerting their patrol.

The first time the cops visited her apartment, they did so on assignment to escort the 27-year-old fashion executive home from the back of a taxicab where she lay passed out after a night of heavy drinking.

Moreno admitted at trial that he faked a 911 call to get an assignment that allowed him and his partner to return her building. Later, the cops slipped out the back door of the station after signing in for a meal, prosecutors said.

Both parties said that the cops found her in the bathroom the first few visits.

The woman, who says she slipped in and out of consciousness, testified that, during the last visit, she woke up to Moreno pulling down her tights and raping her when she was too drunk to resist.

Prosecutors said that her account was corroborated by a cervical injury, a taped confession, video surveillance and witness testimony. But jurors rejected the major charges, in favor of the misconduct counts.

Tacopina attacked the verdict as inconsistent.

To sustain a misconduct conviction, Tacopina said jurors would had to have found that Moreno and Mata were in dereliction of duty when they visited the woman's apartment, and that they received a benefit from being there.

Since the jury acquitted them of rape and burglary, there could be no benefit, he insisted.

Manhattan Criminal Court Judge Gregory Carro rejected that argument before charging the jury.

Tacopina, nonetheless, hopes to boost his appeal with the HBO documentary footage. He contends that the filmmaker's filmed trial witnesses, but left that raw footage out of the final cut after the verdict did not come back as anticipated.

Prosecutors insist that the camera recorded interviews only with the assistant district attorneys working on the case.

Failing to disclose pre-trial witness statements to defense attorneys is a Rosario violation, Tacopina said, referring to a rule established by the New York Court of Appeals decision in the 1961 case People v. Rosario.

Though the ex-cops do not yet have evidence of such a violation, Tacopina said a subpoena to access HBO's footage sustains a motion to allege one.

A block away from the courtroom, a rally against gender violence, organized by the umbrella group Connect the Dots Coalition, disbanded shortly after word got out that Moreno and Mata would not be sentenced today.

Quentin Walcott, director of Connect's Training Institute and the Community Empowerment Program, said that the rally attracted hundreds before the hearing, though that number dwindled to about a dozen at the time of the interview.

According to their website, his organization teamed up with the Crime Victims Treatment Center, Feministing, National Organization for Women, The Healing Center and New York City Alliance Against Sexual Assault and Service Women's Action Network to respond to the sentencing, which is now postponed to Aug. 8.

Walcott was disappointed when informed about the Probation Department's purported recommendation, and the ongoing appeal efforts being bolstered by a subpoena.

"This is another clear example that rape is not taken seriously," Walcott said. "Women's issues are not taken seriously. Women are not taken seriously. The court again fails to hold them accountable and basically revictimizes her by saying that she's not the victim."

The day after the verdict, hundreds also gathered in a parking lot across the street from Manhattan Criminal Court to protest the acquittals.

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