The two New York City police officers who were recently acquitted of raping a woman they escorted home still face up to two years in jail for misdemeanor misconduct charges the jury found them guilty of on May 26. The officers have a two-pronged strategy to avoid going behind bars. On one front they filed a motion today to have their conviction thrown out, suggesting that some footage dealing with their case from the HBO documentary Sex Crimes Unit was inappropriately withheld. On another they moved to bar their accuser from testifying at their sentencing hearing, which had been scheduled for today but was postponed so that the defendants' lawyers could review the newly revealed footage.
Both Kenneth Moreno and Franklin Mata were fired immediately after the jury's mixed verdict arrived. Their new strategy is to get the conviction tossed rests on a technicality of the law. The Associated Press notes that "their convictions stem from what the jury found were their repeated returns to the accuser's apartment without telling dispatchers and supervisors where they were." Their lawyers have claimed that's exactly why they shouldn't be convicted of misconduct. "The relevant law requires that offenders derive a benefit from the misconduct or deprive someone else of a benefit, and prosecutors didn't establish that the ex-officers had done that, defense lawyers said, echoing an argument they made during the trial." In other words, if they haven't been found guilty of rape, they can't be guilty of misconduct, either.
As for the prosecution's failure to turn over some footage shot for Sex Crimes Unit, which aired on June 20, the defense is waiting to watch the footage, which before they make any claims.
Shot by independent filmmaker Lisa Jackson, it goes behind the scenes at the Manhattan district attorney's office to film prosecutors preparing for cases. The case against Mata and Moreno was included, but those scenes were cut because the case was still open when the film was being finalized, Jackson has said.
The footage in question contains "attorneys discussing the case," Assistant District Attorney Coleen Balbert said.
The clips, together about an hour long, include "riveting" strategy sessions about the case and some remarks about it by a DA's office investigator who testified at the former officers' trial, said Moreno's lawyer, Joseph Tacopina.
In case they can't get the conviction thrown out, the two former cops are going to want to get the best treatment they can at their sentencing. To that end, Moreno's lawyer, Joseph Tacopina, said on Tuesday that their accuser shouldn't be allowed to testify. "She is not a victim on any count of the conviction," Tacopina told DNAinfo.