The “cannibal cop” case: Can a SJQ be homoerotic?
A few months ago we blogged about the “cannibal cop” NYPD officer and wondered why that story wasn’t attracting more press. The case has given rise to a proposed supplemental juror questionnaire [SJQ] that is unlike anything we’ve seen in twenty years of trial consulting. Apparently judges haven’t seen the likes of this either. Included in the defense pleading are quotes from “objective and open-minded judges” including reactions such as, “profoundly disturbing”, “close to the most depraved conduct and the most dangerous conduct one could imagine”, “unspeakable”, “depraved, bizarre [and] aberrational”. We have to share. Because we don’t think you’ve seen anything like this before either. And it’s nice to share.
You can read the initial story at the Atlantic. And you can see the original complaint in full at the Scribd website. So the defendant says he was only discussing sexual fetishes/fantasies that he had no intention of ever actually enacting. It was that kind of website and he was one of more than 40,000 visiting the pages and chatting with fellow fetishists. (It’s called the “fantasy defense” and is often used by alleged pedophiles caught in chatroom stings.) So you can see why the Defense wants a SJQ. The judge plans to send out a final SJQ to a pool of 75-100 potential jurors on February 8, 2013. That would be today.
Here’s a bit of background on the SJQ issue from the Courthouse News site:
“Prosecutors in the “cannibal cop” case may probe jury tolerance for violent sexual fantasies with questionnaires that superimpose women’s faces over cartoons of cooked bodies. New York City Police Officer Gilberto Valle, 28, faces charges of conspiring with men he met on Internet chat rooms to “kidnap, rape, torture, kill, cook and eat” women. He insists, however, that he was just one of more than 40,000 visitors to a website catering to extreme sexual fetishes he never wanted to enact. With a February trial approaching, the parties convened in Southern District of New York on Monday to debate how to screen a jury of his peers.”
The Defense expresses concern that jurors will see the Defendant’s behavior (in talking very very specifically about his sexual fantasies with other men) as homoerotic. (We think this is an odd concern as the behavior in question is not homosexual but sadistic. They are not the same and we wonder why the association is being made by the Defense.)
“Prosecutors call the question irrelevant because they alleged only a conspiracy to rape and eat women. Gatto pointed out that Valle constantly discussed his sexual fantasies in detail with other men. ”I think jurors might view this as homoerotic,” she said.”
The Prosecution doesn’t think a SJQ is necessary but offers to let the court (in its wisdom) decide. If a SJQ is allowed, the Defense wants to couch the questions in a more clinical language–asking if jurors can impartially weigh evidence on “rape, bondage, debreasting, castration, necrophilia and sadomasochism fantasies”. The Government prosecution says questions should not include the clinical language and instead say outright that the evidence contains “descriptions of violence, including sexual violence and the abuse of children”. Whoa. Can’t you just see the potential jurors poring over this questionnaire they innocently opened in the mail? This one could bring in a very interesting pool of potential panelists falling all over each other to be one of the chosen. Or not.
While there is a question early on about whether you are very disturbed by watching horror movies–here’s just one of the sexually specific questions from the voluminous SJQ submitted by the Defense:
“You will hear testimony about BDSM, Bondage, Discipline/Domination, Submission/Sadism, Masochism. BDSM includes the practice or thoughts of practices which, if performed in neutral or nonsexual contexts could be considered unpleasant, undesirable and downright abusive. Some examples of BDSM conduct include torture, binding, suffocation, burning, gagging, restraint, whipping, and flogging. However, people who consent to BDSM or otherwise voluntarily associate themselves with these practices, are sexually aroused by the conduct or the thought of such conduct. Will you have a bias or prejudice against an individual who participates or associates themselves with BDSM? Would your view of such persons prevent you from presuming them to be innocent? Would it prevent you from applying the concepts of the “burden of proof” and “reasonable doubt” as I have explained them to you? Could you still decide the case solely on the evidence despite whatever distaste you may have for BDSM?”
The pleadings are shocking. The SJQ is shocking. But bizarre behavior that is consensual is not illegal in most cases. The defense position is that jurors who are shocked into bias at the notion that the defendant endorses or participates in such behavior should not be permitted to serve. As I read it, it raises questions about what kind of jurors would be left in the venire. People who don’t find such behavior disturbing or offensive? And who are those people? How many jurors would have to be examined in voir dire to eliminate those who find these behaviors extremely creepy?
“So, Juror #1102, I understand from your answer that you believe that if debreasting/burning/torturing a woman is consensual, you would be able to consider all of the evidence and judge whether my client broke the law? Thank you very much.”
We have written numerous times about the importance of determining how to make your client “like the jurors”. In this case, with that prospect appearing to be virtually impossible in a typical random sample of citizens, the attorneys are seeking to remove the large majority of the public from the venire who find such behavior reprehensible and depraved (even if consensual). As much as I consider myself open-minded, it would be difficult for me to set aside the thought that someone who enjoys “fantasizing” about such behavior is a short walk away from acting it out. And, while I don’t consider BDSM as a civil rights cause, I am also aware that the horror and distaste that we might feel about this is similar to the reaction that many have had in past eras to interracial marriage, and more recently toward homosexual marriage or transgender issues. The shock value of the SJQ and voir dire could make finding a jury willing to focus on the facts difficult to achieve. But no one said that justice was going to be easy.
Yamagami, DS (2000). Prosecuting cyber-pedophiles: How can intent be shown in the virtual world in light of the fantasy defense? Santa Clara Law Review