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The CSI Effect: Lack of DNA Evidence Spared Cops Accused of Rape

By DNAinfo Staff on May 27, 2011 9:15am  | Updated on May 27, 2011 9:25am

By Shayna Jacobs

DNAinfo Reporter/Producer

MANHATTAN SUPREME COURT — The acquittal of two police officers charged with rape was largely due to the age of "CSI," where jurors expect definitive DNA evidence to lead to a conviction just like on glorified TV crime dramas, legal experts said.

In the trial of former cops Kenneth Moreno and Franklin Mata, who were found not guilty Thursday of raping a 27-year-old drunk woman in her East Village apartment, no semen or other physical evidence from them was recovered in her home or on her body. That forced the jury — a panel of seven men and five women — to decide whether to believe the woman as to what happened on Dec. 7, 2008.

With their verdict, the jury said her powerful and graphic testimony alone was not enough to convict Moreno, 43, and Mata, 29.

Kenneth Moreno (l.) and Joseph Tacopina (r.) leave Manhattan Supreme Court after the verdict Thursday.
Kenneth Moreno (l.) and Joseph Tacopina (r.) leave Manhattan Supreme Court after the verdict Thursday.
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DNAinfo/Paul Lomax

"The bottom line is over the last 10 years, peoples' expectations of a prosecutor is to always have some sort of scientific evidence," said defense attorney Arthur Aidala. That places an onus on prosecutors that's "so high that they can't even reach that burden anymore." 

Aidala said that the verdict may likely have been very different if there was any of the officers' hair or semen found on the woman or on her bed. Prosecutors said the absence was the result of her taking a shower before going to her rape exam at Beth Israel Hospital. They also said Moreno used a condom to explain why none of his semen was found.

Prosecutors said Moreno pulled off the woman's clothes and raped her while Mata played lookout during one of their four visits to her East 13th Street apartment between about 1 a.m. and 5 a.m. The woman said she distinctly remembers — through periods of alcohol induced blackouts — the officer having sex with her as she lay helpless and unable to fight him off.

Alan Abramson, a veteran defense attorney and former prosecutor who has represented members of law enforcement, said even if jurors found her credible their inclination to expect DNA as solid proof led them to believe the evidence was insufficient.

"I think they struggled with the fact that they didn't have any physical evidence of forensic evidence to confirm the testimony," Abramson said.

The new-age expectations of jurors has proven problematic for prosecutors and rape victims who are already reluctant to report it for fear of shame and repercussions.

Sonia Ossorio, the executive director of the New York's chapter of the National Organization for Woman, said that courts everywhere are dealing with the "CSI effect," especially in rape cases where people expect biological proof.

In her experience dealing with prosecutors and victims, she's found "most cases don't involve that type of evidence," for various reasons, including condom use.

"Basically we're telling rapists just be smart and wear a condom and you'll get away with it," Ossorio said.

But Anthony Ricco, who represented Officer Gescard Isnora in the Sean Bell case, believes the lack of DNA evidence was less of an issue than the woman's unreliable memory.

"People tried cases in this country for 200 years before there was forensic evidence," he said. "The lack of forensic evidence doesn't prove or disprove a case."

Having defended one of the officers accused of firing 50 bullets at Sean Bell and killing him, Ricco said he believes all police officers are given the benefit of the doubt in court. And the same went for Moreno and Mata.

"Obviously theses cops were doing something they weren't supposed to be doing. Who the hell knows what they were doing? But they've got to prove what they were doing."