What the jury didn't hear: the recently acquitted NYPD officers had another reported issue with a young woman
By Graham Rayman
In May, a Manhattan Jury acquitted two police officers of raping an intoxicated woman in her apartment while on duty in 2008. The officers were convicted of official misconduct, however, and were immediately fired by Police Commissioner Raymond Kelly for returning repeatedly to the woman's apartment without notifying their superiors.
In media interviews following the widely reported and controversial acquittal, jurors cited a "lack of corroboration," such as DNA evidence, to tie 9th Precinct Patrol Officers Kenneth Moreno and Franklin Mata to the alleged December 2008 sexual assault. The verdict sparked protests and criticism of the jury, defense attorneys, and prosecutors.
What wasn't reported, and what the jury never heard, was that Mata and Moreno had another documented and troubling encounter with an intoxicated young woman outside an East Village bar in August 2008, just a few months before the alleged sexual assault.
In the August incident, Mata and Moreno were accused of being verbally abusive to a woman, calling her a "cunt" and a "bitch," among other things. They pushed her around, causing scratches and bruises on her wrists. They refused to take her criminal complaint for theft. They refused to identify themselves. They detained her twice on specious grounds, never read her Miranda rights, held her for several hours, and let her go without explaining why she had been arrested.
The
Voice has learned that the Manhattan District Attorney's office was not only aware of this second incident (investigators interviewed the second woman in 2009), but chose not to introduce it into evidence at trial. In addition, documents show that the Civilian Complaint Review Board substantiated—in other words, considered credible—the woman's account for offensive language and recommended that the NYPD charge the officers with violating department rules. (Both were involved, but the CCRB only substantiated allegations against Mata.)
"I was shocked and upset that they didn't use my case in the trial," says the now-24-year-old Long Island University graduate student, whom we'll call Caitlin. (The
Voice is withholding her identity at her request.) "My case could have helped. You had another example of severe misconduct involving the same officers—abuse of power, involving the opposite sex, a vulnerable victim. It shows a pattern of misconduct."
The rules on introducing what are known in legal jargon as "prior bad acts" are very strict, but they can be raised in some situations if the defendant takes the stand. Since both Mata and Moreno testified, prosecutors theoretically could have brought in Caitlin's case on cross-examination. But they may have felt the case would not have had an impact on the outcome, that it wasn't relevant to the rape allegation, or they didn't think it would be allowed in by a judge.
Asked why Caitlin's case was not introduced, a spokeswoman for Manhattan District Attorney Cyrus Vance Jr. said she could not comment on trial decisions and what evidence is admissible.
CCRB spokeswoman Linda Sachs confirmed that the agency investigated an encounter on that date. "It's not our practice to comment on the specifics of any particular complaint," Sachs tells the
Voice.
Chad Siegel, who represented Moreno along with Joseph Tacopina, said he wasn't previously aware of the allegation. "It sounds like someone who is disorderly got arrested and now wants to capitalize on what happened," he says. "It sounds like sour grapes to me."
Siegel adds that neither officer had poor disciplinary records: "My guess is that even the D.A.'s Office discredited her. If they thought it was relevant, they would have used it."
Edward Mandery, Mata's lawyer, tells the
Voice, "The prosecution saw it for exactly what it was, that this wasn't anything of substance. People make complaints about police officers every single day."
"She's in a bar, they are refusing to serve her, what does that tell you?" he adds. "The D.A. left no stone unturned in this case, and they didn't feel this was in any way relevant. There's a reason for that."
Caitlin, of Dominican descent, was raised in Queens by her grandparents. She attended the High School for Arts and Business, and then LIU, where she majored in English and graduated with honors. She has worked as an investigator for a public defender's office, and has traveled widely. She is currently seeking a master's degree in public administration at LIU, and wants to start a nonprofit focusing on international women's issues. She has never been previously arrested, and has no criminal record.
On August 21, 2008, Caitlin had been drinking for several hours with friends in a Village dive called Cheap Shots, at First Avenue and 9th Street. The bar, in a former butcher's shop, has plywood floors and walls covered in graffiti.
Caitlin, then 21 and still an undergrad, was celebrating. She was planning to go to India that week for a study-abroad program to help her obtain her undergraduate degree at LIU. Late in the evening, Caitlin's friend asked for two last shots. The bartender refused to serve him, they argued, and she ordered them to leave.
Outside on the sidewalk, Caitlin encountered a group of teens. She was holding a tote bag in her arms, which contained her cell phone, her friend's cell phone, and their wallets. Her friend was in the bathroom.
One of the teens, she says, asked to look at her friend's iPhone. The teen returned the phone, and Caitlin placed it in her bag. Her friend emerged from the bar and suggested getting a cab, distracting Caitlin momentarily. When she looked at her bag again, it was empty, and the teens had left.
"It was a huge, open bag," she says. "They must have reached in and took it. I was concentrating on looking for a cab."
Upset, Caitlin tried to get back into the bar to report the theft. The bartender refused to let her in, so she banged on the door. Meanwhile, a passer-by began filming her with his own phone. That made Caitlin irate, and she pushed the passer-by while yelling at him.
Police arrived, apparently called by the bartender. Officers Moreno and Mata pulled up outside the bar in their police cruiser. By then, the passer-by had wandered off. Caitlin says she tried to report to the officers that her stuff had been stolen, but they weren't sympathetic.
"They aren't taking me seriously from the beginning," she tells the
Voice during an interview at Junior's Restaurant in Brooklyn. "I'm trying to be reasonable and rational, saying my things were stolen, and they are laughing and giggling, patronizing me. So I get upset. They grab me, push me against the car, handcuff me, and put me in the back seat. They aren't taking my report. They also hit my friend."
While she was in the police car, Caitlin says Mata looked through her bag, took out a sanitary pad, and said, "Is this why you're so cranky?"
"I get pissed," she says. "I opened the car door, and he kicked or pushed me back in the door so hard that my glasses fell off. I asked him to get them, and he said, 'You're a smart girl. Get them for yourself.' "
Later, Mata teased her, "You're not going to India now."
Caitlin said she kicked at the seat and called Mata names, ragging on his salary and his profession. She asked him to identify himself, but he refused, saying, "It's none of your business."
(Courts have ruled over the years that even if a civilian is being obstreperous or abusive, police officers are required to act professionally.)
"It's not like I am an uneducated person," she says. "I was trying to report a crime. I knew I had done nothing wrong."
She says Mata and Moreno drove her a few blocks from the bar, and dropped her off. Worried that she had no money, no phone, and no way to get home, she looked for and found her friend, who was urinating behind a dumpster.
Outside a pizza joint, Caitlin was still very upset. A young couple stopped to ask if she needed help. She asked them for subway fare, but they called the police. Once again, Mata and Moreno arrived at the scene, this time accompanied by other police officers.
Caitlin says she tried once again calmly to report the theft, and told them that she had no way to get home. Mata, she says, threw a dollar on the ground, laughing. Caitlin lost her temper again. She went back into the pizza place and borrowed $2 in quarters to pay for a subway ride home.
"I was trying to reason with him earlier, but I was mad that he threw the money on the floor," she says. "He got pissed, pushed me against the car, knocked my friend down, and handcuffed me really hard. He puts me in the car, and drives to the precinct, saying, 'You're going to love sleeping in jail.' "
Caitlin was held at the 9th Precinct stationhouse for several hours in a cell, where she says she sat in a corner on the floor while the officers searched her tote bag. She was finally released at about 7 a.m. When she looked inside her tote bag, she found a summons for disorderly conduct.
"I finally saw Mata's name plate, and I told him, 'You'll be seeing me again, Officer Mata,' " she says.
The officers never took her crime report, and the alleged theft apparently was never investigated.
When she got home, her grandparents were upset with her because someone kept calling them using her phone. It's then that she learned someone not only used her phone to make calls, but bought gas using her gas card and tried to use her credit card to buy a new phone on the Internet.
Later in the day, Caitlin rode the subway to the CCRB offices at 40 Rector Street, and made her complaint. An investigator, Anna Steel, took photographs of her scratches and bruises.
A copy of the complaint report obtained from Caitlin established that the chronology she described in interviews fit what she told the CCRB.
"[She] attempted to tell Mata and Moreno she had been robbed. The officers did not take her seriously," the report says. "She became upset and began to yell and scream."
She was handcuffed, the report says, and Mata removed a sanitary napkin from her purse and stated, "Is this why you're being so bitchy?"
The report says that when Mata threw the dollar on the ground, he stated, "Here, bitch." When they got to the precinct, the report says, Mata called her a "cunt."
The report says she was in the cell for about 45 minutes. She sustained bruises and cuts on her hands and wrists from the handcuffs, the report says.
"I admitted to calling him every name in the book, but only after I had tried to reason with him twice," she says. "They weren't taking me seriously, and they were trying to humiliate me."
She left the CCRB at about 3:25 p.m. Then she went to the 9th Precinct stationhouse and filed a complaint about Mata and Moreno's conduct. She also asked for a copy of the theft report. The desk officer confirmed Mata and Moreno had been working that night, but he told her no theft report had been filed. So she once again reported the details of the theft. To date, there's no indication the theft was ever investigated.
She canceled her credit cards, and on the following day, she went to get a photo ID to replace the one that had been stolen.
On December 7, 2008, Mata and Moreno responded to a cab driver's call for assistance with an intoxicated woman. The woman, 29, had drunk a substantial amount of vodka at a party celebrating a promotion earlier that evening at an East Village bar, and had vomited in the back of the cab.
The woman filed a complaint with the Manhattan District Attorney's office later that day. She claimed that she had been violated by Moreno while in a semiconscious state on the bed in her apartment. Surveillance video showed the officers walking her into her building just after 1 a.m., leaving, returning again 40 minutes later, leaving 17 minutes later, and returning again at 3 a.m., staying for 30 minutes.
Prosecutors and Internal Affairs opened an investigation, and the NYPD placed Moreno and Mata on modified duty. The officers claimed that they were just checking on her, and counseling her about her drinking.
Caitlin returned from India in December 2008 to attend her brother's funeral. In early 2009, she appeared in court to contest the summons for disorderly conduct. The charge was immediately dismissed.
At some point, someone notified the Manhattan District Attorney's office of the existence of the complaint, because in March 2009, an investigator arrived outside Caitlin's Bronx home in a black car. She sat in the car for 20 minutes or so and answered questions about the incident. She didn't hear from prosecutors again, until more than two years later.
Mata, 29, and Moreno, 43, were arrested in late April 2009, in connection with the rape allegations. Prosecutors charged that Moreno assaulted the woman while Mata acted as a lookout and misled 9-1-1 dispatchers. The woman had a blood alcohol level nearly three times the legal limit, so she was unable to legally consent to sex. Police Commissioner Kelly called the case a "shocking aberration." Defense lawyers insisted that the officers were innocent.
Because the CCRB does not discuss investigative steps, it's unclear what the agency did to verify Caitlin's story. But in June 2009, the CCRB substantiated Caitlin's complaint, and passed it on to the police department with a recommendation that they file disciplinary charges against Mata. A substantiated complaint means that the CCRB found enough evidence to justify the complaint. But Caitlin says she never received the letter that CCRB typically sends out to notify complainants of the outcome of their complaints.
Mata and Moreno went on trial for the rape in early April 2011 to widespread media coverage. Just before the trial, new details emerged, including a tape recording of Moreno telling the woman he had used a condom. He also told her, "You want me to admit something that didn't happen?" It also emerged that they had visited her apartment not three, but four times. They were also charged with failing to call an ambulance for her.
After she met with those D.A. investigators in March 2009, Caitlin says she heard nothing about her own case for the next two years. No one outside of the CCRB, the NYPD, and the D.A.'s Office knew anything about her complaint. And she hadn't been following the rape case.
At the end of May, just before Memorial Day weekend, the jury acquitted Mata and Moreno of rape, but convicted them of the official-misconduct charge. Tacopina, Moreno's lawyer, declared that justice had been served. Moreno, meanwhile, asserted that the woman "made the whole thing up." Protesters picketed the courthouse, and the victim issued a statement saying she was "devastated and disappointed by the jury's decision."
"Hearing that verdict brought me to my knees; it brought me back to my bedroom on that awful night when my world was turned upside down by the actions of two police officers who were sent there to protect, but instead took advantage of their authority and broke the law," she wrote in the statement.
Right after the jury acquitted Mata and Moreno, Caitlin saw an image of the officers on television, and immediately recognized them as the ones involved in her complaint.
She first called the CCRB, and learned that the complaint had been substantiated. But the agency told her, per policy, that she couldn't examine the case file. She says she's annoyed that she didn't find out about the substantiation earlier.
Next, she called the D.A.'s Office. Eventually, she got a call back from Assistant D.A. Randolph Clarke, one of the prosecutors in the rape trial.
The prosecutor, she says, was brusque. "He was really brushing me off, telling me my case wasn't relevant," she says. "He kept saying he was not at liberty to discuss it. I was silent and in awe. What do you mean 'not relevant'?"
Mata and Moreno likely will never work again as police officers, and they may serve jail time. In addition, the alleged rape victim has filed a $57 million lawsuit against the city. But the obvious question is: Would Caitlin's case have helped the prosecution of the officers in establishing a history of prior bad acts? There are other questions, as well.
How did the officers get away with not filing her criminal complaint, especially since she re-filed it the following day in the precinct? Why wasn't the complaint, after she re-filed it, investigated? Why didn't the officers show up to her disorderly conduct hearing, if they believed she had committed the violation?
Or is their encounter with Caitlin an example of how messy it can be to deal with patrons of the many bars in the East Village?
For now, Caitlin is moderately satisfied that Mata and Moreno were fired from the NYPD, but she's still upset that prosecutors didn't use her case in the trial, and she wants to know what the NYPD did about her case, if anything. She says she's on the fence about filing a lawsuit. (The NYPD has not responded to emailed questions.)
"I'd like to help [the other woman]," she says. "I don't really want anything. My case is relevant. If more people knew about this, maybe there are others out there."
Mata and Moreno face up to a year in jail for each of the three official-misconduct counts. No other women have come forward thus far to make similar allegations against them.
grayman@villagevoice.com
