4 Are Convicted in Sexual Abuse Of Retarded New Jersey Woman (original) (raw)
March 17, 1993
By ROBERT HANLEY
EWARK, -- Three former high school football players from Glen Ridge, N.J., were convicted here today on charges of sexually assaulting a retarded friend with a baseball bat and a broom handle after enticing her into a basement with the promise of a date in March 1989. A fourth defendant was convicted of one count of conspiracy and acquitted of all other charges.
Four former football players at Glen Ridge High School were charged with sexually assaulting a retarded schoolmate on March 1, 1989. The defendants faced all the nine charges listed below. All were acquitted of counts 4 through 9. Charges on which they were convicted 1. Conspiracy to commit aggravated sexual assault and aggravated sexual contact. Christopher Archer -- Guilty, 2d degree Bryant Grober -- Guilty, 3d degree Kevin Scherzer -- Guilty, 2d degree Kyle Scherzer -- Guilty, 2d degree 2. Aggravated sexual assault (penetration of mentally defective person by bat, broom and/or stick). Christopher Archer -- Guilty, 1st degree Bryant Grober -- Not Guilty Kevin Scherzer -- Guilty, 1st degree Kyle Scherzer -- Guilty, 2d degree 3. Aggravated sexual assault (penetration with bat, broom and stick with use of force or coercion. Christopher Archer -- Guilty, 1st degree Bryant Grober -- Not Guilty Kevin Scherzer -- Guilty, 1st degree Kyle Scherzer -- Guilty, 1st degree
Although the three, Christopher Archer and Kevin and Kyle Scherzer, were acquitted of six charges, the jury returned guilty verdicts on the most inflammatory charges in the case -- that popular high school athletes clustered around a childlike 17-year-old schoolmate who idolized them and coveted their friendship and then thrust a bat and broom into her.
A central issue in the 23-week trial was whether the young woman, who has an I.Q. of 64, was mentally defective as defined by the law, unable to understand or exercise her right to refuse to engage in sex acts.
Whether the Men Knew
In an interview this afternoon, one juror, Mario Tolentino, said the jury agreed early in its eight days of deliberations that the 21-year-old woman was mentally defective and unable to exercise her legal right to say no. He said it took three days of often angry debate to resolve another crucial element in the state's law on mental defectiveness: whether the defendants knew or should have known the young woman lacked the ability to refuse.
Since the arrest of the defendants almost four years ago, the case has sharply split residents of their stately suburban town of 7,000. Some denounced it as an immoral outgrowth of community worship of high school athletics. Supporters of the defendants criticized the young woman as flirtatious and eager for sexual adventure.
That argument was the foundation of the defense strategy: to depict the young woman as a seductress and suggest that in fact it was their clients who were the victims.
Helpful Verdict, Harmful Trial
The trial had been closely watched by a broader audience: advocates for the mentally retarded, women's-rights leaders and experts in rape law.
"It was the clearest message we could hope for that the public outrage over the acts was shared by the jury and the community at large," said Herbert Lev, president of the Association of Retarded Citizens of Essex County, N.J. "The verdict showed clearly that such exploitation will not be tolerated."
At the same time they welcomed the verdict, women's advocates and experts in rape law said that the trial may have set back efforts to help rape victims come forward in an atmosphere of respect. They were particularly critical of a pretrial ruling that lifted New Jersey's rape shield law to allow testimony about the young woman's sexual history.
The verdict today was harshest against Mr. Archer, 20, and Kevin Scherzer, 22. They were convicted of a second-degree count of conspiracy and two first-degree counts of aggravated sexual assault with the bat and broom -- one for assault against a mentally defective woman and the other for use of force or coercion. Kevin's fraternal twin, Kyle, was found guilty of second-degree conspiracy, first-degree aggravated sexual assault by use of force or coercion and second-degree attempted aggravated sexual assault.
Mr. Grober, 21, was convicted of a single third-degree conspiracy charge. He was acquitted of two charges involving the bat and broom. And all four defendants were found not guilty of two charges involving an act of fellatio on Mr. Grober, two charges of touching the young woman's breasts and two charges of forcing her to masturbate the defendants.
The four defendants stood stony-faced as the trial judge, R. Benjamin Cohen, read the jury's verdicts shortly before 11:30 A.M. Mr. Archer at times glared at the jurors and then at reporters in the spectator gallery. His mother sat ashen-faced, as did Mr. Grober's mother, Rosemary, and his father, Nathan, a physician. The Scherzer twins' father, John, sat slumped over among the spectators.
All but Dr. Grober, who has attended nearly every day of the trial, declined comment after the verdict. Asked for reaction, he said only, "Enough is enough."
3 Defendants Called Rapists
A prosecutor, Robert D. Laurino, called Mr. Archer and the Scherzer twins "rapists" and threats to their community and asked Judge Cohen to revoke their bail, which ranges from 1,500to1,500 to 1,500to2,500, and order them to jail. He condemned Mr. Archer as the "mastermind" of the 1989 encounter and said his co-defendants had him "to thank for their predicament."
"This individual is extremely dangerous and he should be separated from society," Mr. Laurino said. "We do not want predatory sex offenders on the street."
He contended that Mr. Archer had been involved in a separate sexual assault against a female college student after his arrest in the Glen Ridge case in May 1989. Mr. Laurino refused to give further details, saying Judge Cohen had ordered all relevant documents sealed.
Judge Cohen rejected Mr. Laurino's request and let all four men remain free on bail until the sentencing date, which he set for April 23.
As Little as 5 Years
First-degree crimes in New Jersey carry jail terms of 10 to 20 years, and technically Mr. Archer and Kevin Scherzer could face maximum sentences of 40 years. But sentencing rules also give trial judges considerable discretion assigning penalties. For instance, lawyers close to the case said, Judge Cohen could use the penalty for one second-degree count -- 5 to 10 years -- as the concurrent penalty for the convictions on two first-degree crimes. Thus, theoretically, the sentence could be as little as five years, and the time served even less. New Jersey law stipulates that after prisoners serve half of their minimum sentences, they can become eligible for parole.
The penalty for a third-degree crime is 3 to 5 years.
As Judge Cohen read the verdict sheet, 11 of the 12 jurors sat grim-faced, looking at the judge. The 12th juror, Dawn Scott, wept quietly, dabbing at her eyes with a tissue.
In the interview this afternoon, Mr. Tolentino said the jury's private votes for convictions involving the bat and broom were 9-3 and then, after intense debate, 11-1. The lone holdout finally agreed this morning.
About 10:45 A.M., a hour after deliberations started today, clapping, a whoop of delight and then cheering were heard in the jury room. Ten minutes later, the jury forewoman, Judith Deskins, sent Judge Cohen a note saying: "We are ready. We have reached a verdict. Thank you."
The Essex County Prosecutor, Clifford J. Minor, said he was "obviously pleased" with the verdict.
The defense lawyers, Thomas Ford, who represents Mr. Archer, and Alan Zegas, Mr. Grober's lawyer, both said they planned to appeal and seek a new trial. Mr. Zegas said the prosecution's presentation was "fraught with error."
Victim-Blaming Backfired
The "Lolita Defense," as it was dubbed by The New Jersey Law Journal after opening arguments depicted the young woman as an aggressive seductress, generated ire throughout the trial. Most galling to many women's-rights advocates was the notion that the defendants themselves needed "protection," as one defense lawyer, Michael Querques, argued.
"The defense was counting on a world view of victim blaming and misogyny that simply was not shared by the jury," said Alice Vachss, a former chief of the Queens County Special Victims Bureau and the author of "Sex Crimes." "The anger turned toward the victim was ugly. The degree of venom here was frightening."
Several lawyers, veterans of difficult rape trials themselves, said that the defense lawyers' air of jocularity during courtroom breaks may have undercut their case.
"The jury would have observed the mood," said Stephen P. Scaring, the lawyer who won an acquittal in the St. John's University case involving several lacrosse players charged with a gang rape. "Just maybe the lawyers were perceived as part of the problem, part of the group."
Limits on Ability to Consent
For all the thousands upon thousands of words in the trial record, the case boiled down to one basic issue: Was a retarded 17-year-old with an I.Q. of 64 and a second-grade reading level capable of consenting to sexual acts involving a baseball bat, a broom handle and a stick?
Prosecutors said no. Defense lawyers said yes.
At the start of the trial last October, Judge Cohen made it clear that prosecutors would have to show more than gullibility, slowness or learning problems to prove the charge that the young woman was mentally defective, as defined by New Jersey's sex crime law, and, as such, was unable to understand or exercise her legal right to refuse to engage in sexual activities.
Most of the state's 24 witnesses, including the young woman's mother, sister, teachers, two friends, and mental health experts, described a troubled life, educationally, socially and emotionally.
The young woman spent many of her school years in classes for the learning impaired. After her retardation was diagnosed in 1987, she entered special classes for the educable mentally retarded in West Orange, N.J. She finally left high school in June 1992 at age 21 after she was no longer eligible for public education.
Her grasp of math and reading never advanced much beyond an 8-year-old's, witnesses said. She couldn't name four American Presidents. She thought the United States had five states and called its major political parties "public" and "primary." She couldn't follow a movie's plot line or instructions to cut a pie in half.
Defense lawyers tried to create an entirely different picture of the young woman. They contended, primarily during their cross-examinations, that she was a promiscuous temptress throughout her teen-age years and, in the 1989 episode, was an oversexed aggressor who started and then eagerly joined in all the sexual acts in the Scherzer basement.
In late December, the jurors had a chance to form their own impressions when she took the stand. What they saw was a chubby, baby-faced woman with short-cropped hair. They heard her speak in a thin, childlike voice, using vulgar terms for masturbation and fellatio casually and without embarrassment.
She gave a prosecutor, Robert D. Laurino, a cursory description of activities involving the bat and broom, saying they were "stuck" into her vagina by Chris Archer and Kevin Scherzer, respectively.
'I Still Care About Them'
But she hesitated when asked to identify the four defendants.
"Do I have to?" she asked.
Yes, Mr. Laurino said.
"Oh, boy," she said, sighing.
After some confusion, she identified each of the defendants by name, with the help of the prosecutor.
"Are they still your friends?" Mr. Laurino asked.
"Sort of," the young woman said.
What does that mean, the prosecutor asked.
"I mean that I still care about them," she said.
Then the defense took over.
Kevin Scherzer was brought before the young woman by his lawyer, Mr. Querques.
"You love him a little bit, don't you?" the lawyer said to the young woman.
"Uh-huh," she answered. After a moment, she called Kevin Scherzer "handsome."
"You don't want to hurt him, do you?" Mr. Querques said.
"No," she said. "I don't want to hurt anybody. I care about them. I know they don't give a hoot about me, but I care about them."
Defendant Is 'a Sweetheart'
Mr. Querques asked her, "pretty please," to be "my friend."
"Yup," she agreed.
The lawyer called the defense the "bad side" in the trial and said, "we don't count, do we?"
"You count," the young woman answered.
She also told Mr. Grober's lawyer, Mr. Zegas, she "wanted" to commit fellatio on Mr. Grober.
Was his client ever mean to her, Mr. Zegas asked.
"No way," she said. "He's a sweetheart."
The next day she told Mr. Laurino, the prosecutor, that Mr. Grober was not a sweetheart, that Mr. Zegas was an "air head" and that she was "confused" about the trial.
Mr. Laurino asked why.
"Because here's one side and here's the other side," she said. "It's hard to choose between one side and the other."
