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N.J. Man Cleared of Rape Has Case Against Cops

(CN) — A man who was locked up 18 years for someone else's 1996 rape of a New Jersey teen can sue police for fabrication of evidence and negligence, a federal judge ruled.

Sheronda Atwell, then 17, was walking to her aunt's home in East Orange, N.J., when a man came up near Fairmount Cemetery in the dark, rainy wee hours of May 8, 1996, according to court records.

When Atwell declined to speak with him, the man — who she later said was black, 20 years old, 5-foot-7 and about 185 pounds — allegedly put his hand over her mouth from behind.

He then dragged Atwell to an empty lot and raped her vaginally, court records show.

The man then allegedly told Atwell to stay down and "remember Jeff."

Detective Derrick Eutsey reported that Atwell identified Rodney Roberts as her rapist.

But the photo Eutsey showed Atwell — which is now nowhere to be found — was a decade old, taken when Roberts was convicted of sexual assault at age 19 in 1986, Roberts claims.

Yet Roberts promptly pleaded guilty to kidnapping Atwell in exchange for a seven-year sentence and dismissal of the aggravated sexual assault charge in June 1996.

Roberts served his time and was involuntarily committed as a sexual predator in 2004.

Atwell then told Roberts' attorney that she had never made a photo identification of her attacker and did not even know that someone had been arrested for the assault, Roberts claims.

According to court papers, the attorney soon learned that a rape kit was done immediately after Atwell was attacked, and that Roberts' DNA had never been analyzed.

Investigator Michele Bolan then collected a cheek swab from Roberts in 2005, but submitted only the vaginal slide part of Atwell's rape kit to the Office of Forensic Sciences. Assistant prosecutor Robert Laurino allegedly later insisted his office had sent all it had.

Though the slide contained no male DNA, a judge ordered assistant prosecutor Clara Rodriguez to find the kit and do a full analysis in 2013, which excluded Roberts as the rapist.

The court, in turn, vacated Roberts' plea and dismissed the indictment. He was released in March 2014, after his 1996 imprisonment and 2004 involuntarily commitment to a special treatment unit for sexual predators.

Roberts then sued his defense counsel, police and prosecutors in federal court.

Newark, the Essex County prosecutor's office, Laurino, Bolan and assistant deputy public defenders Charles Martone and Stefan Van Jura moved to dismiss.

But U.S. District Judge Kevin McNulty partially denied the motions Friday, upholding Roberts' claims for fabrication of evidence, due process, and negligence against Laurino and Brian.

"Roberts alleges that Laurino and Bolan are responsible for the missing rape kit, that they knew the complete kit was not submitted in 2005, and that they played a hide-and-seek game, delaying his exoneration," McNulty wrote. "Maybe yes, maybe no, but I find that the allegations sufficiently state a claim of bad faith. Discovery should assist the parties in determining who had custody of the original rape kit between 1996 and 2007, why only portions of the rape kit were submitted for testing, and why it remained undisclosed in its complete form until 2013."

The judge later added, "The complaint sufficiently alleges that the officers misrepresented the nature and scope of the analysis to Rodriguez, who made a representation in court that was more certain and categorical than the facts warranted. I will permit the parties to explore the truth, or not, of that allegation in discovery."

The public defenders' allegedly "ineffective assistance for failing to call certain witnesses at the evidentiary hearing" might amount to legal malpractice, the 30-page ruling states.

McNulty also refused to dismiss the vicarious liability claims against Newark and the prosecutor's office, while Eutsey's motion to dismiss is still pending.

Roberts' attorney, Mirel Fisch with the Law Office of Anthony M. Grandinette in Mineola, N.Y., said, "It will take some time for the case to play itself out, however we are confident that we will prevail."

"As to Detective Eutsey's motion to dismiss, we are confident it will be denied as well," Fisch added.

Gary Lipshutz with Newark's Department of Law and Essex County Assistant Counsel Alan Ruddy declined to comment on the ruling.

The New Jersey Attorney General's Office did not return requests for comment Monday.

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