You Cannot Be Serious!
I remember watching tennis matches back in the 80’s. The line judges would determine if the ball was hit in or out of bounds. I felt sorry for the judges who were fussed at by players when they were simply trying make the correct call. John McEnroe often gave them an ear full. Times have changed. Now, players can ask for a computer program to zoom in and replay the exact position of the ball strike. Everyone watches it and the results are clear – no arguments.
In a he said-she said case we don’t have video replay. The judge listens to the testimony and determines if there is reasonable doubt. In Drew’s case the judge leaned heavily upon his impression regarding credibility of the witnesses. He said they were both credible witnesses but he found the woman to be more credible. He said he would consider Autism Spectrum Disorder (ASD) as he would have to consider a blind man’s limitations. Those words might have sounded good in the transcript but ASD was not considered. I am convinced that it was not understood by the prosecutor or the judge.
I believe my son. Not just because he’s my son. What he told me from day 1, in our kitchen, the day after the night at her apartment is what he reported in court. It didn’t matter who he talked to; his details remained the same. His statements remained consistent from 2012 until now. What he said to all of us lined up with what he said in court that day. The 100% no deception of the polygraph is exactly what I was expecting.
The woman made a number of statements that were inconsistent with her own testimony. For example, they went to a book store, just the two of them, where she recommended an erotic book for him to buy. She told the police that after the night in her apartment they kept in contact but she never allowed herself to be alone with him. He testified she showed him her semi-nude and nude modeling photos that night. Under oath she said she did not show him any photos that night.
When we received a copy of the police report after my son was found guilty by the judge, I was loaded with emotions – intense emotions. The woman told the police she was showing Drew her modeling photos that evening, a major discrepancy in her version of events at trial. This was an important piece of information since she admitted knowing the effect her naked photos had on my son. Drew’s attorney filed a Motion to Set Aside The Verdicts, asking the judge to review all discrepancies in her story … particularly since the judge went with witness credibility … and reasonable doubt is the ultimate guideline.
Prior to sentencing, the woman’s inconsistencies were presented. I expected the judge to be as unbiased as a tennis line judge. Errors in credibility are going to be made, particularly when characteristics of Autism Spectrum Disorder are not fully understood. But, now the judge was presented with proof of inconsistent testimony. I thought it would be as clear as watching the electronic replay of the tennis ball landing out of bounds. Even McEnroe would have accepted the evidence.
Drew’s defense attorney pointed out that the judge relied upon witness credibility in reaching his verdict. He read what the woman told the police – As she has previously done on numerous occasions with their friends, (her name) began to show Drew her modeling photos with the intent of getting his feedback. He pointed out that at trial the woman adamantly denied showing Drew any of her modeling photos that night.
I remember thinking that this judge cannot be serious. I’ll let you read from the transcript and draw your own conclusion:
The Judge: In fact, isn’t that absolutely consistent, substantially consistent with Mr. Harrison’s page 146, line 12, where he said, She pulled out her phone. She was packing, so she didn’t have any portfolio books laying around. But on her phone she flipped through showing modeling photos, etc.
Defense Attorney: What difference does that make, whether it’s on the phone or in the book? She says, I didn’t show him those things on that day, Your Honor.
Judge: All I’m saying (attorneys name), is I always focus, as your letter invited me to, on inconsistent testimony. I was interested in it. That’s why I reviewed the transcript. All I’m saying, maybe as I did on the Barnes & Noble issue, they both agree, (her name) and Mr. Harrison, that she was moving and had her portfolio book apparently packed and unavailable.
Defense Attorney: That’s irrelevant to the issue that’s before the court. If she is showing him photographs of herself in this state and she knows thats what leads him on, what’s the relevance of whether it’s in a portfolio book or she shows him on her phone? When she admits she did it when she’s talking to the police and she denies – – and the court didn’t get to that next exchange where she says or I asked, I think you told the court you did send him those photos. And she said, At some point, but not on that day.
The Judge: I think our failure to communicate is what is the purpose for which you’re making the point? Is it just she said A versus Z? I’m finding there is some consistency, but some inconsistency. They both agreed the portfolio books were packed up. He said she pulled out her phone. She didn’t say that.
Defense Attorney: She says she showed him photos. She says she didn’t show him photos.
The Judge: Couldn’t she have been thinking of – –
Defense Attorney: I didn’t ask her did you show him portfolio books. I said, Did you show him photos.
The Judge: I know, but when she says, I didn’t have anything. I was moving. She’s clearly thinking about her portfolio books.
Defense Attorney: I asked her, Judge, three times. Did you show him photos? And she says, No. She didn’t show him any of those photos on that day. She had shown them to him before and she admits that that led him on and he complained about that.
The Judge: Just to finish my thought, what I was going to say is the question is, is this just a pure credibility issue saying A verses Z or are you arguing – – I guess, you’re arguing both, that in addition to the inconsistency, you’re saying it tends to show that he believed it was consensual and he believed he was being led on.
Defense Attorney: And I think it shows he knew she was leading him on at that point toward having sex because she knew that’s the effect it had on him. She admits that under oath. She wanted to tell this court, I didn’t lead him on because I didn’t show him any photographs. Yet she admitted she did that when she’s talking to the police at the very initial conversation she had with the police.
I sat in the courtroom feeling like I had been punched in the gut. I could not understand the judge’s point no matter how hard I tried. Why so much emphasis on how she showed Drew the modeling photos? Shouldn’t the focus be on her inconsistent testimony, and raise doubt as to why she didn’t own showing him her photos during testimony at trial?
I will now share with you from the trial transcript Drew’s testimony regarding the photos.
Drew’s defense attorney is asking the questions. Drew is answering:
Q: Let me ask you about the photos, the pictures. Let’s start with did you receive these prior? Did you get pictures of her from her prior to the event in early March?
A: Yes, all the time.
Q: And were they restricted to all clothed?
A: No. She’s very careful about this. The majority of her photos are basically naked, but not showing vagina, not showing nipple, but showing everything else. Those are the types of erotic photos she would send me. Her excuse – – it would upset me. She knew I liked her. She would say, I’m just getting feedback from my friends, but she would send me these half naked pictures of her pretty regularly, even after I told her to stop.
Q: You said you told her to stop because it made you uncomfortable.
A: I viewed it as kind of a tease because she knew how I felt about her, and that she was still sending me these photos knowing that I’m attracted to her. I just found it kind of offensive.
Q: When you went to the apartment in early March, did she take the opportunity to show you or – –
A: Yes. I was surprised that she didn’t either remember that or whatever, but she pulled out her phone. She was packing, so she didn’t have any portfolio books laying around, but on her phone she was flipping through showing modeling photos and those included nudes, full-on breasts, her butt. There were nude photos in the mix.
Q: Did that also contribute to your believing that she was seeking you?
A: Absolutely. That, coupled with the fact that while she was showing the photos, I’m just rubbing my hands up her back, scratching her back, shoulders. All of the intimate contact was, you know, reciprocated. It was okay.
I understand the timeline can be hard to follow. But, here’s the short version, from the facts above.
- Drew stated under oath at trial in January 2014 that she pulled out her phone and began to show him her modeling photos. He described to the judge that these were semi-nude and nude.
- At trial the young woman denied three times that she showed Drew those photos of herself that night.
- However, when the young woman spoke to the police in September, 2012 she told them she showed Drew her modeling photos that night.
- The police report with this admission from her was not given to Drew’s defense attorney until AFTER Drew was found guilty. Only the Commonwealth was privileged with a copy of the police interview.
- So, now June 30, 2014 the judge has before him proof that the woman he determined to be more credible had in fact given inconsistent testimony about a very relevant issue.
I want to be clear. No man has a right to force himself upon a woman because she shows him erotic, nude and semi-nude photos of herself; or for any other reason. But, I am saying that credibility depends in large part upon the consistency of statements. And, if you’re familiar with this story by now, there is a long list of reasons, the totality of which would give any man; on the autism spectrum or not, the belief that sexual contact was being invited, and consensual. And, even though this blog post isn’t about the fact that they both agreed that he stopped when she asked him to stop, and he left her apartment immediately; it bears repeating.
If you have read Convicting Drew – Parts 1-5 then you are aware there was considerable reasonable doubt to begin with. Now there is another layer of doubt. However, the judge stuck with his decision to find Drew guilty. He sentenced him to 50 years, suspending 47 years, making 3 active. We have been told by Drew’s therapist that 3 years for Drew is a death sentence, as it would be for many on the autism spectrum. We have also been told that if he somehow survives; when we get him back, we will not recognize him. He will never be the same. I have no doubt about this. I see what seven weeks in jail did to him.