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M.G. lived in Glen Ridge most of her life, where she attended special education classes at the elementary and middle schools. In 1989, when seventeen years of age, she attended [***5] classes for the "educably mentally retarded" at West Orange High School. She participated in athletics programs, such as softball and basketball, at Glen Ridge High School. Defendants were also Glen Ridge [**210] residents and M.G. had known them since grade school.
At trial M.G. testified that on the afternoon of March 1, 1989, she went to Carteret Park in Glen Ridge, to play basketball. There she saw the Archer brothers, Corcoran, and another boy. While she was shooting baskets, Christopher Archer, Grober, Quigley, and two other boys greeted her. In her direct testimony, M.G. said that Grober told her that if she went to the Scherzers' basement with them she would get to go out with Paul. However, on cross-examination she said that she went up to Grober, placed her hand on his crotch, and said something to the effect of "Nice package you have there. Would you like a blow job?" On redirect, she stated the latter testimony was a lie, as she did not want to hurt people.
She said she walked to the Scherzers' house with Christopher Archer, who put his arm around her shoulders. She viewed this as "romantic." When they arrived, there were already "a lot of people" on the stairs and in the basement. [***6] Others started setting up chairs near the couch, while she and Grober sat on the couch. M.G. said that when some of the boys asked her to, she took off [*394] her sweat pants and T-shirt. Thereafter, at the urging of the boys, sexual activity occurred beginning with M.G. inserting her fingers in her vagina, her masturbating and performing fellatio on five of the young men, permitting Kevin to insert a broomstick and Christopher to insert the handle of a baseball bat into her vagina. She said she permitted Corcoran to put a small stick in her vagina. Four of the boys also sucked on her breasts. Before she left, some of the boys told her "not to tell anybody" or they would tell her mother and she would "get in trouble."
Paul Archer, called on behalf of the defense, testified to a different account of the events. He said he and Quigley went to the park because he had heard some baseball players would be throwing the ball around. When they arrived, they went over to talk to the Scherzer brothers and some other friends who were on the basketball court. Soon afterward, Grober and Christopher arrived. Then M.G. arrived carrying a basketball and went directly to Grober. Paul overheard M.G. say, [***7] "Bryant, you're really hot. You're sexy. I like your body. You have a nice package." Grober appeared startled. Paul said that in all the years he had known Grober, he had never before seen him engage in conversation with M.G. After M.G. made these comments to Grober, Paul saw her reach for Grober's crotch, and Grober lunged back. M.G. then asked if Grober wanted a "blow job." At first Grober did not take her seriously, but after they talked, he asked if she meant it. Paul and Quigley walked to the Scherzers' house, where there were "a couple of guys" playing Nintendo in the basement. Soon, Grober and M.G. appeared. Paul observed Grober drop his pants, and M.G. kneel down and perform fellatio. After a while, he saw Grober rest his hand on M.G.'s shoulder, but did not observe him exert pressure. Grober then moved his hand to the top of M.G.'s head, but once again no pressure was exerted. He did not hear M.G. say any words of resistance. According to Paul, the entire act took about thirty seconds. Grober then sat down and did not participate in any other sexual activity with M.G.
[*395] According to Paul, M.G., who was "totally in control" of the events, then said that "that blow job just [***8] got me so horny, I want to have sex with someone." When no one responded, she stood up, pulled down her pants, and then laid down on the couch. He said she then placed her fingers followed by the other objects into her vagina voluntarily. Kevin and Christopher helped her move the broomstick in and out. On cross-examination, Paul admitted that he had testified, when the judge was taking his guilty plea, that his brother and Kevin had inserted the broomstick into M.G., but said that testimony was a mistake.
He said that as people started to leave, M.G. walked to him, pulled up her shirt and bra, and said, "Paul, don't you like my breasts?" She asked him to touch them, but he refused. He said no one else touched her breasts, nor did he observe M.G. masturbating any of the boys or anyone doing anything with a stick. When M.G. asked if the boys wanted to "come back another day and do it again," no one responded. Some of the boys [**211] said, "You're not going to say anything about this?" and she said no. He said that the entire incident, from the time M.G. first walked up to Grober at the park until she left the basement, lasted about twenty minutes.
Three boys who said they left the basement [***9] soon after the sexual activity began testified for the State. They agreed that M.G.'s activities with Grober, which is all they witnessed, appeared to be voluntary, as they did not see Grober use any force. The first adult to whom M.G. related the incident was her swimming instructor, who testified that on March 3, 1989, after the swim class, M.G. came to talk to her, but seemed hesitant. M.G. said she had gone to a party during the week, that there were boys there, and that "something had happened." When asked what happened, M.G. said she did not want to talk about it now. The next day the instructor talked to M.G. in the locker room. M.G. told her she had gone to someone's basement and the boys asked her to "suck their dicks" and "stuck something up [her] butt." The instructor told M.G.'s classroom teacher at West [*396] Orange High School about the incident. The teacher informed M.G.'s parents about a week after the incident occurred. When M.G. learned that the instructor had told others about the incident, she was angry and said that it was her own fault that the "boys got in trouble" and that "she was going to lie."
M.G.'s mother took her to a gynecologist on March 14, 1989, [***10] however, a pelvic examination showed nothing abnormal. Her mother first met with the Glen Ridge police on March 22, 1989, and on March 27, 1989, M.G. and her mother met with Detective Sheila Byron. They brought a stick M.G. had brought home after the incident. Detective Byron became the principal investigator on the case.
M.G. gave the prosecution four statements--on April 7, May 5, May 18, and August 3, 1989. In the third statement the word "forced" in the phrase "additional acts were forced upon me" was crossed out and changed to "done." The investigator who took the statement from M.G. testified that he made the change because he did not think she knew "what the concept of the word force was." However, under cross-examination, M.G. testified that she requested the change because the acts were not forced on her.
M.G.'s fourth statement included her first accusation against Corcoran. She said she had not related this earlier because she had not wanted to get Detective Byron "in any trouble . . . [with] her boss [who was related to Corcoran]." M.G. later told her mother that she had lied about Corcoran's involvement. Her mother immediately relayed this to the police. After a [***11] June 6, 1990, meeting at the prosecutor's office to discuss M.G.'s recantation, Byron had a private conversation with M.G. during which M.G. retracted her recantation and said that Corcoran had put the stick inside her.
M.G. said she had recanted because "everybody is behind him [Corcoran]," or possibly because her mother did not believe her about Corcoran, or "it could have been Maricarmen [Ferraez] who told me to say Richie didn't do anything." This was the first [*397] Byron had heard about M.G.'s conversations with Ferraez, a friend of the Scherzers whom M.G. knew from her basketball team. Between September and November 1989, Ferraez had taken M.G. out for ice cream on several occasions and during their time together Ferraez had secretly taped conversations in which she persuaded M.G. to talk about the incident and her prior sexual history. Following Rape Shield Law hearings, the Ferraez tapes were redacted and played for the jury. They were also discussed by the State's expert witnesses.
The State presented numerous witnesses who testified concerning M.G.'s personality, mental acuity, and the way she was perceived by others. A teacher who taught M.G. and other educable mentally [***12] retarded students at West Orange High School, said that M.G. functioned verbally on a second-grade level, had poor self-esteem, and was "very easily led" by people whom she hoped would like her. An instructor, who in 1982 taught tennis to a group of children that included M.G. and the Archers, all about eleven or twelve at the time, testified that the other children, including the Archers, would call M.G. "stupid" [**212] and "a retard." He said that when he offered M.G. the opportunity to be in a different group, she said those boys were her friends and she wanted to be with them.
Dawn Lipinski, the sister of M.G.'s friend Jennifer Lipinski, testified that "everyone knows that [M.G.] is different." She also said that M.G. would "do anything that she's asked to do" and that she had never heard her say no to any request. M.G.'s sister also said that everybody knew that M.G. was different. She testified that M.G. talks as if she is five or six years old, cannot follow simple instructions, and does not understand money. As an example of how easily led M.G. was, her sister said that when M.G. was five years old, a group of children, including Kyle and Kevin, persuaded her to eat dog feces.
M.G.'s [***13] mother testified about the social problems that emerged when M.G. was attending Columbia High School in Maplewood in 1987. She said M.G. would act the part of the class clown, setting [*398] herself up for ridicule. M.G.'s teachers at Columbia were concerned she might be raped. This led her mother to have her gynecologist prescribe birth control pills for her. M.G.'s mother also testified that, prior to the incident, M.G. had received sexual phone calls from Christopher Archer.
A guidance counselor at Columbia High School, testified about the sexual incidents in which M.G. was involved while at Columbia. M.G. told someone that "she wanted to be fucked," she would regularly exchange sexual comments with a group of football players in the cafeteria, and someone once touched her breast in health class. After these incidents, the guidance counselor claimed to have told M.G. that she had a right to refuse to allow someone to touch her body, but she could not understand this concept, especially when the person touching her was a friend.
The young men who testified at trial about the incident, three for the State and one for the defense, Paul Archer, all acknowledged it was common knowledge that [***14] M.G. was different. She was described as hard to communicate with, and as "slower, simple," something one could recognize after a few minutes of conversation. She associated mainly with younger children, was subjected to teasing, was the butt of jokes, was in special education classes, and was called "a retard."
The State presented three expert witnesses: Dr. Susan Esquilin, a psychologist specializing in the area of sexual abuse; Dr. Gerald Meyerhoff, a psychiatrist specializing in the field of child and adolescent psychiatry and mental retardation in children and adolescents; and Dr. Ann Burgess, a registered nurse with a doctorate in psychiatric mental health nursing and a specialist in the field of rape trauma. Dr. Esquilin administered an I.Q. test on which M.G. scored 64, the mildly-mentally retarded range. On the adaptive behavior test, which measures daily living skills, M.G. scored in the top half, when compared to other retarded people. According to Esquilin, M.G. had a high risk of victimization because "she so focused on what somebody else wants and needs and not what she feels she [*399] wants and needs. . . . She's likely to do what anybody asks her to do." Esquilin expressed [***15] the opinion that M.G. is mentally defective, as she is incapable of exercising the right to refuse to engage in sexual conduct, and understands coercion only as the use of physical force. To M.G., her sexuality was a way of pleasing others. Esquilin's review of the Ferraez tapes strengthened her opinion that M.G. was susceptible to coercion and social pressure and that she had an immature concept of friendship.
Dr. Meyerhoff diagnosed M.G. as mildly-mentally retarded and suffering from attention-deficit hyperactivity disorder, residual state. He did not diagnose her as suffering from post-traumatic stress disorder, as defined in the Diagnostic and Statistical Manual of Mental Disorders III ("DSM III"). In his opinion, M.G. was "mentally defective" because although she understood that she was engaging in conduct of a sexual nature, she did not understand that she had the right to refuse to participate in the sexual activity. His review of the Ferraez tapes did not alter his opinion. Under cross-examination he acknowledged M.G. was at times sexually aggressive because sexual activity fulfilled her need for friendship, which "was an important [**213] part of her life." He also acknowledged [***16] that she was capable of lying and being deceptive. Dr. Burgess, who had co-authored a pioneering study on rape trauma syndrome ("RTS") in 1974, testified about the kinds of reactions she had observed in rape victims and how her observations served to dispel such common myths as that victims immediately report a rape or that all victims display an emotional demeanor after an attack. She said that adolescent rape victims often do not disclose information about rape immediately, especially when the assailant is known to them, because they have divided loyalties about the assailant and fear retaliation. Recantation may be a way of protecting the assailant from getting into trouble or for the victim to deny that the rape occurred.
One of the methods Burgess used when interviewing M.G. was an "event drawing series." She used it to gain both visual and verbal information in a nonleading fashion. She had M.G. draw a [*400] series of pictures, including representations of the basement incident. Defense counsel objected to testimony on the drawings, and their admission into evidence. The judge overruled the objection, but told the jury that "her testimony is not offered to show one way or the other [***17] whether [M.G.] was sexually assaulted . . . it's to better help you understand some of the issues so that you can decide what really happened back on March 1, 1989." Additionally, Burgess testified that M.G. suffered from RTS, as M.G. reported the incident only to people with whom she felt safe, and because of the type of friendship she desired with defendants. The Ferraez tapes did not change her opinion because the leading, suggestive questions asked by Ferraez caused M.G. to answer in a way intended to please her friends. Burgess also believed that Ferraez's inclusion in defendants' social network pressured M.G. into recanting her accusation against Corcoran. Under cross-examination, Burgess acknowledged that RTS would fall under the category of post-traumatic stress disorder in the DSM III, a condition that Meyerhoff did not believe M.G. suffered from.
May 26, 1989, Friday, FINAL EDITION
SECTION: NEWS; Pg. 3A
LENGTH: 249 words
HEADLINE: Assault case shakes affluent N.J. town
BYLINE: Keith Greenberg; Mimi Hall
DATELINE: GLEN RIDGE, N.J.
High school football co-captains and twins, Kevin and Kyle Scherzer, 18, Peter Quigley, 18, and two unnamed 17-year-olds face an Essex County grand jury on the charges stemming from the March 1 attack.
Ray Weiss, spokesman for the county prosecutor, says more arrests are possible: Eight other teens - including the son of a police lieutenant who initially led the probe - reportedly watched the assault. Weiss denies allegations of a cover-up attempt. He says the arrests - the day after a WNBC-TV report - took so long because so many students were involved.
At Glen Ridge High School Thursday, students and teachers reeled
from the news, rumored for weeks. Thursday's annual Spring Day was
marred by vandalism and fights.
Principal Mike Buonomo suspended the boys for 10 days to minimize disruptions. He says the incident has been ''a real trauma'' for the ''tight-knit'' student body of 350.
''You can't picture them doing it,'' says Emily Tomkin, 16. ''It's not like they have problems getting girls.''
But Alec Aguire, 16, says the boys ''thought the world revolved around them and probably (thought) they could get away with anything.''
Bank manager Cynthia Swartz, 27, is ''surprised there's so much anger in these kids'' who live affluently. The town, with a $ 242 million tax base, boasts lavish houses, gas street lamps and wide lawns.
Says Brogan: ''Most people are shocked. ... Someone gets a splinter here and everyone knows about it.''
Copyright 1990 The New York Times Company
The New York Times
July 7, 1990, Saturday, Late Edition - Final
SECTION: Section 1; Page 26, Column 6; Metropolitan Desk
LENGTH: 111 words
HEADLINE: METRO DATELINES;
Twins Plead Innocent In Glen Ridge Case
The former co-captains of the Glen Ridge High School football team have pleaded innocent to sexually assaulting a mentally handicapped girl more than a year ago. The former co-captions, Kevin and Kyle Scherzer, who are 19-year-old twins, entered their pleas Thursday before Superior Court Judge Joseph A. Falcone. He allowed them to remain free on $25,000 and $20,000 bail, respectively.
Two other youths, Peter J. Quigley and Richard Corcoran Jr., were indicted in May along with the Scherzers on charges of sexually assaulting the girl in the basement of the Scherzers' home on March 1, 1989. Mr. Quigley and Mr. Corcoran have also pleased not guilty. (AP)
The New York Times
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August 29, 1992, Saturday, Late Edition - Final
SECTION: Section 1; Page 21; Column 2; Metropolitan Desk
LENGTH: 978 words
HEADLINE: Judge Rules Sexual History Is Admissible in Trial
BYLINE: By ROBERT HANLEY, Special to The New York Times
DATELINE: NEWARK, Aug. 28
A New Jersey judge ruled today that the past sexual conduct of a mildly retarded woman from Glen Ridge, N.J., is admissible evidence in the trial of four former high school football teammates accused of sexually assaulting her.
New Jersey's rape-shield law restricts the presentation to juries of information about the previous sexual activities of alleged victims of rape or sexual assault. But under some circumstances, that shield can be lifted, and Judge Burrell Ives Humphreys said today that the need to protect the woman was outweighed in this case by the right of the defendants to a fair trial. "Bedrock in our system of justice is the constitutional right to a fair trial," Judge Humphreys said. "That right will be violated if the evidence is not admitted here."
The case, which broke three years ago, set off intense debate in Glen Ridge, a stately Essex County community of about 8,000, about whether the town, and perhaps society as a whole, had failed to provide moral guidance to young people.
Judge Humphreys said the "crucible of the trial" might be difficult for the woman, now 21 years old, whom he identified in his opinion only by initials. But he added: "There is no fair alternative to a vigorous and searching quest for the truth. From truth springs justice. To shroud the truth is to invite an unjust verdict."
At the time of the incident, the accuser and all the defendants were teen-agers who had grown up together in Glen Ridge. Although the woman was classified as neurologically impaired as a child and was enrolled in special education classes in a neighboring school district, she played softball and basketball at Glen Ridge High and was friends with most of those charged with assault.
Judge Humphreys said it was critical that the jury have information about the woman's sexual history to resolve the conflicting arguments at the core of the case -- the state's claim that she was mentally defective and thus incapable of consenting to the acts committed against her, and the defense's argument that she fully understood sex and was a willing participant in the encounter on March 1, 1989, in the basement of two of the defendants.
Judge Draws Criticism
The judge's decision raised some criticism.
Ruth Jones, a staff attorney with the NOW Legal Defense and Education Fund in New York, said she had not seen the ruling but that she understood the accuser was not severely mentally retarded. In that case, she said, there should be other ways of establishing the woman's ability to consent to sexual relations, instead of bringing up her sexual history.
"With every rape shield law, there's generally a catch-all phrase that tells the judge that in the interests of justice, you can sometimes allow a woman's sexual history," said Ms. Jones, a specialist in violence against women and a former assistant district attorney in Manhattan. "But it's a very narrow line. The general assumption is that a woman's prior sexual history should not come before the jury."
Instead, Ms. Jones said, the victim's ability to understand what sex means, or her ability to get back and forth to high school, for example, could be sufficient information for a jury to decide whether she was capable of consenting to a sexual act.
The judge said today that the woman had an I.Q. of 64.
The four defendants, all teammates on the 1988 football team at Glen Ridge High, are each charged with four counts of aggravated sexual assault on a mentally defective person through force and coercion and four counts of aggravated sexual criminal contact. Each also faces a conspiracy charge.
The four are Bryant Grober, 21, Christopher Archer, 20, and Kevin and Kyle Scherzer, 21-year-old twins in whose basement the assault is said to have occurred. Their trial is to start in State Superior Court here on Sept. 8 before Judge R. Benjamin Cohen.
In addition, a fifth Glen Ridge man, John Maher, is to be tried with them on a single conspiracy count for allegedly planning to ask the young woman to another sexual encounter at the Scherzer home on March 2, 1989.
A separate trial will be held for another man facing sexual assault charges. He is Richard Corcoran, 21, son of a Glen Ridge detective who headed the early investigation in the case.
Two other former football teammates originally charged each pleaded guilty this summer to a single charge of endangering the welfare of a mentally incompetent person. They have been placed on probation and are expected to testify for the state at the trial. The two are Peter Quigley, 22, and Paul Archer, the 21-year-old brother of Chris Archer.
A defense lawyer, Allan Marra, who represents Bryant Grober, said he was elated at Judge Humphreys' ruling. "It was just a screaming out of justice in this case, to say the least," he said.
Judge Acknowledges Risk
The state's chief lawyer for the trial, Glenn D. Goldberg, a Deputy Attorney General, said the state had not decided whether to appeal Judge Humphrey's ruling. "The strength of the state's case is unchanged," he said.
The judge said one reason for his admitting the woman's sexual history was the state's reliance on it to bolster its arguments before the grand jury and in pretrial hearings that she was mentally defective and had shown in previous sexual encounters that she was incapable of understanding them or exercising her right to say no to them.
He said the state had depicted her as a "very vulnerable, open person and that her sexual conduct was not for sexual gratification but rather to gain the affection, love and attention of others."
Defense lawyers, on the other hand, argued that the young woman was "very knowledgeable and involved in sexual matters" and "knew of the distinctly sexual nature" of her conduct in March 1989 and was capable of refusing to submit to the acts, the judge said.
The New York Times
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October 27, 1992, Tuesday, Late Edition - Final
SECTION: Section B; Page 6; Column 5; Metropolitan Desk
LENGTH: 629 words
HEADLINE: Teacher in Abuse Trial Says Woman Had Low Self-Esteem
BYLINE: By ROBERT HANLEY, Special to The New York Times
DATELINE: NEWARK, Oct. 26
A special-education teacher who taught the accuser in the Glen Ridge sex assault case described her today as an easily distracted and overly self-critical person with low self-esteem.
The witness, Jeanette DePalma, said the woman, who is mildly retarded with an I.Q. of 64, frequently said she was not performing as well as other mentally impaired students in her class. Some of them often sought to encourage her, Mrs. DePalma testified. The teacher, testifying in New Jersey Superior Court, where four men are on trial in the reported assault, also described the young woman as "an extremely passive kid."
Mrs. DePalma recalled that an aggressive student in her class once pushed and hit the young woman. Rather than strike back, she "cowered" against a locker, Mrs. DePalma said.
In an attempt to define the young woman's mental impairment, prosecutors had hoped to have Mrs. DePalma tell the jury about what they called the young woman's second-grade reading level and her poor social skills. But the presiding judge, R. Benjamin Cohen, barred them from going into her academic performance and restricted their questions to the young woman's ability to communicate with her peers.
Judge Cohen said he would not allow questions about her educational ability, her medication or how distractible she is. He said those issues were irrelevant, in part because Mrs. DePalma began teaching the young woman in a special-education class at West Orange High School in September 1989, six months after the reported assault by four schoolmates who played on the 1988 Glen Ridge High football team. The four defendants are Kevin and Kyle Scherzer, 21-year-old twins, Bryant Grober, 21 and Christopher Archer, 21.
The state offered Mrs. DePalma as a fact witness, able to describe only facts or events she had observed, and not as an expert witness specializing in psychology or psychiatry. Under ground rules for the trial, both the prosecution and the defense have each agreed to call only three expert witnesses.
Mrs. DePalma called the young woman friendly and eager to help and said she had limited abilities to express ideas. She said she would leave a "lot of holes" in things she would try to explain. Mrs. DePalma also said she was "extremely distractible" and had difficulty remembering details.
Disputes Over Questioning
When a prosecutor, Robert Laurino, asked Mrs. DePalma to provide examples of this distractability, defense lawyers objected and Judge Cohen instructed her not to answer.
Moments later, Mrs. DePalma said the young woman was unable to grasp abstract concepts, like understanding the simplest fractions.
Judge Cohen refused to allow any elaboration on that answer, and he rejected subsequent questions from Mr. Laurino about the young woman's vocabulary and reading abilities, or her ability to understand how mechanical things functioned.
During cross-examination, Mrs. DePalma said the young woman often had memory "gaps" and was unable to give detailed answers or descriptions.
Defense Questions Reliability
But, Mrs. DePalma insisted, "the information she gave was reliable." At another point, the teacher said, "she is very easily led."
Alan Zegas, the lawyer for Mr. Grober, asked if she could be led by a detective.
"She could be easily led by anyone who chose to lead her -- absolutely," Mrs. DePalma answered. "It would include people she wanted to like her. If someone treats her kindly, they automatically can become a friend. She has poor social judgment."
When Mr. Zegas asked if the word "rumor" was too sophisticated for the young woman to understand, Judge Cohen interrupted and told Mr. Zegas he was delving into areas he had prevented the prosecutors from exploring.
The New York Times
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November 10, 1992, Tuesday, Late Edition - Final
SECTION: Section B; Page 7; Column 1; Metropolitan Desk
LENGTH: 431 words
HEADLINE: Teammate of Woman in Assault Trial Calls Her Object of Jokes
BYLINE: By LYNETTE HOLLOWAY, Special to The New York Times
DATELINE: NEWARK, Nov. 9
A new witness in the Glen Ridge sexual assault trial, a former playmate and teammate of the mildly retarded woman central to the case, testified today that the young woman had often been the object of jokes.
"She would be looking for us when we told her we were playing hide and seek," said Christine Middleton, 23 years old. "But we would be in the house instead." Ms. Middleton, who was also captain of the high school basketball team on which the young woman played, was called as a witness by the prosecution, apparently to show that peers of the young woman knew of her limited mental abilities.
The state contends that the woman did not have the mental capacity to consent to acts of sex with a group of Glen Ridge High School athletes in March 1989. Lawyers for the four young men on trial here contend that the woman, 17 years old at the time of the events in question, was sexually experienced and consented willingly.
Treatment by Teammates
The prosecutor, Glenn D. Goldberg, questioned Ms. Middleton about whether the young woman could follow directions on the basketball team.
"So did you have her on defense?" he asked.
"If we told her to guard No. 12, she would probably follow her out the door," Ms. Middleton said.
The defense objected to that answer, saying that Ms. Middleton never actually saw anything like that.
Ms. Middleton said teammates often laughed at the young woman, recalling one occasion when she dribbled the wrong way on the basketball court and other times when they made fun of things she was talking about.
During cross-examination, Charles Ford, a defense lawyer, asked at one point: "You were a leader? Did you ever tell people not to make fun of her?"
'A Lot of Tolerance'
Ms. Middleton stared straight ahead and, in a low voice, said, "No."
At a later point, Ms. Middleton said that there was a lot of tolerance for the young woman.
"There was an incredible level of tolerance on the part of the coach," she said. "We all had a lot of tolerance for her."
Before Ms. Middleton began testifying, lawyers finished questioning Dr. Susan Esquilin, a psychologist who examined the young woman for the prosecution. Dr. Esquilin had been on the stand for more than a week.
The four defendants on trial here are Bryant Grober, 21, Christopher Archer, 20, and 21-year-old twins Kyle and Kevin Scherzer. They face charges of second-degree conspiracy to commit aggravated sexual assault and aggravated criminal sexual contact; first-degree aggravated sexual assault, and third-degree aggravated criminal sexual conduct.
The Washington Post
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March 17, 1993, Wednesday, Final Edition
SECTION: FIRST SECTION; PAGE A1
LENGTH: 648 words
HEADLINE: 3 Men Convicted of Raping Mentally Retarded Woman;
Victim Assaulted in New Jersey Basement
BYLINE: Malcolm Gladwell, Rachel E. Stassen-Berger, Washington Post Staff Writers
DATELINE: NEWARK, March 16, 1993
Three young men who engaged in sexual acts with a mentally retarded woman in a New Jersey basement four years ago were found guilty today of rape.
The case dates to March 1, 1989, when a dozen youths gathered in a basement room in the affluent New Jersey suburb of Glen Ridge while sexual acts were performed on a half-naked, mildly retarded girl from their neighborhood. Four of the youths were brought to trial.
All of the defendants were sports stars at the local high school whom the victim had known since childhood and whom she said she had idolized. The verdict was viewed by women's rights advocates as a turning point in the effort to expand the legal definition of rape because the three men were convicted of sexual assault even though the threats they made against the victim were not explicit and the victim recanted part of her story.
"The jury said that boys can't just be boys," said Christine McGoey, coordinator of the Essex County chapter of the National Organization for Women.
After eight days of deliberation, the jury said that Christopher Archer, 21, and Kevin Scherzer, 22, were guilty of two counts of first-degree sexual assault when they inserted a baseball bat, a stick and a broom into the vagina of the then-17-year-old woman, who has an estimated IQ of 64. The charges carry a maximum sentence of 30 years.
Kyle Scherzer, Kevin's fraternal twin, was found guilty of one count of sexual assault. The fourth defendant, Bryant Grober, 21, was found guilty of a single third-degree count of conspiracy.
The 23-week long trial also brought what some advocates said was much needed attention to the rights of the mentally retarded.
"What this shows is that people who are mentally retarded can be protected by the criminal justice system just like nonretarded people," said Leonard S. Rubenstein, director of the Washington-based Mental Health Law Project. "In the past, prosecutions [like this] were rare because prosecutors either think they can't get a prosecution or the mentally retarded are so devalued that no one cared."
Attorneys for the three defendants said they would appeal. Sentencing was set for April 23.
The case was unusual for a number of reasons.
The first was the victim's handicap. Although defense and prosecution agreed that the victim was very familiar with the physical mechanics of sex -- and was sexually active -- her mental retardation complicated the question of whether she knew what it meant to consent to sex or whether she had the ability to say no.
A second complication arose from the ambiguity surrounding the alleged rape itself. The victim apparently entered the basement willingly, lured by the promise of a date with one of the defendants' brothers, and never explictly or openly resisted any of the sexual demands made upon her. Later she would give contradictory testimony about what happened in the basement, saying at one point that it "was so exciting, it was perfect."
In winning the case, the prosecutors managed to convince the jury that the victim was not capable of giving consent to the sexual activity in the basement and that the defendants should have known that.
Clifford J. Minor, the chief prosecutor, said it was also noteworthy for its expansion of the definition of rape to include even the ambiguous circumstances of what happened in Glen Ridge.
For example, the case saw an expert testify about the meaning and impact of rape trauma and how that might account for the fact that the victim delayed reporting the crime against her and partially recanted her story.
The case also represented the successful use of arguments by the prosecution that someone can be criminally coerced not just through overt threats but also through more subtle, implied threats, and that the use of force in sexual assault can mean an act in which there is no obvious contest of wills.
GRAPHIC: PHOTO, CHRISTOPHER ARCHER, ONE OF THREE MEN FROM GLEN RIDGE CONVICTED OF RAPE, LEAVES ESSEX COUNTY COURTHOUSE IN NEWARK AFTER JURY ANNOUNCED ITS VERDICTS. AP
The New York Times
Information Bank Abstracts
May 15, 1993, Saturday
SECTION: Section B; Page 2, Column 6
LENGTH: 52 words
HEADLINE: PROSECUTOR: REVOKE BAIL OF GLEN RIDGE DEFENDANTS
Essex County Prosecutor Clifford J Minor asks New Jersey appellate court to revoke bail of Christopher Archer and Kevin and Kyle Scherzer, former high school football teammates convicted of raping mentally retarded teenager in Glen Ridge home four years ago (S)
Copyright 1997 The New York Times Company
The New York Times
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April 27, 1997, Sunday, Late Edition - Final
SECTION: Section 4; Page 2; Column 5; Week in Review Desk
LENGTH: 156 words
HEADLINE: April 20-26;
Glen Ridge Rapists Still Free
BYLINE: By MELODY PETERSEN
On March 1, 1989, a group of high school football players from the New Jersey town of Glen Ridge lured a retarded schoolmate to a basement with the promise of a date.
Three of them then sexually assaulted the girl with a broom and baseball bat, while as many as 10 others pulled up chairs to watch. In 1993, a New Jersey judge sentenced the three men, who were found guilty of sexual assault and conspiracy, to 22 months in a complex for juvenile offenders. As yet, though, the three men -- Kevin and Kyle Scherzer and Christopher Archer -- have not served one day of that time. They have been free on bail, attending college and working, while lawyers appeal their case.
In their appeal last week in New Jersey Superior Court, the lawyers argued that the trial was tainted when one juror led the others in morning prayers and when the prosecutor sang "The Sounds of Silence" in his closing arguments. MELODY PETERSEN
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May 21, 1997, Wednesday, Late Edition - Final
SECTION: Section B; Page 4; Column 1; Metropolitan Desk
LENGTH: 990 words
HEADLINE: Convictions Reversed in Assault on Retarded Woman
BYLINE: By JAN HOFFMAN
A New Jersey appellate court threw out a conviction yesterday against three former high school football stars from Glen Ridge, N.J., for sexually assaulting a mildly retarded teen-ager in the basement of a family home, ruling that the young men had not forced or coerced her because, it said, she gave her consent.
But the three-judge panel did uphold a different count of aggravated sexual assault, which says that two defendants preyed upon a victim who they knew was "mentally defective." In practical terms, the sentences for those two will not be disturbed, while a third defendant could see his sentence halved. The mixed ruling alarmed advocates for the mentally disabled, who called it internally inconsistent and likely to send a troubling message about the ability of such victims to fend off their attackers.
In finding that the victim -- a woman described as having the reasoning capacity of an 8 year old and named in court papers only as M. G. -- was mentally defective, the judges said that she did not know that she had the right to refuse sex. But in determining that the young men had neither physically forced nor verbally compelled her to comply with a variety of sexual acts, including the insertion of a broom handle in her vagina, the judges also said that her conduct indicated that "her engaging in the sexual activity in question was consensual."
Although the young men had clearly egged her on and enticed her with promises of a date with one of them, the judges said, "Persuasion is not coercion."
Sarah Mitchell, the executive director of New Jersey Protection and Advocacy, a group that works for people with disabilities, called the court's language contradictory. She questioned how a victim could truly give her consent. That would mean she also knew that she had the right to say no -- a capacity the court had said she did not possess. Legally, she said, such victims "could always be vulnerable to persuasion."
She added, "It's mind boggling."
The episode, which occurred more than eight years ago, raised troubling questions about adolescent sexuality and the extent to which a group of teen-age boys, some of whom were star athletes at the high school in Glen Ridge, a small, well-to-do suburb in Essex County, had abused a gullible young woman who had been an outcast all her life. "Boys will be boys," became the head-shaking, tongue-clucking explanation of their behavior by their defenders, especially given that M. G. apparently believed that sex was a way to curry favor with them.
On March 1, 1989, several of the boys happened upon M. G. in a local park, where the special education student was shooting baskets by herself. She followed them to the home of Kyle and Kevin Scherzer, twin brothers and co-captains of the high school football team, whom she had known since childhood. On the way over, one defendant, Christopher Archer, put his arm around her, a gesture that M. G. later testified was "romantic." Ultimately, there were 13 teen-age boys gathered in the basement of the Scherzer home, although many were not involved in the sexual assault.
According to yesterday's decision, the teen-agers encouraged her to masturbate in front of them. She performed oral sex on five young men, and permitted Kevin Scherzer to insert a broomstick in her vagina and Mr. Archer to attempt to insert the handle of a baseball bat. Before she left, she was warned not to tell anyone lest she get in trouble.
The case did not go to trial until 1992, in part because of protracted battles over which young men would stand trial and whether they would be tried as youths or adults. On March 16, 1993, Kevin and Kyle Scherzer and Christopher Archer were convicted of second-degree conspiracy to commit aggravated sexual assault and first-degree sexual assault by force or coercion. Mr. Archer and Kevin Scherzer were also convicted of first-degree assault upon a mentally defective person; Kyle Scherzer was convicted on the lesser charge of second-degree attempted aggravated sexual assault.
Judge R. Benjamin Cohen used a New Jersey law that may be applied to people 26 and under to sentence them as "young adult offenders," which would allow them to serve their time in campus-like complexes. They each received 15 years, which experts predicted would probably be translated into about 22 months. Then the judge stayed the sentences, pending appeal.
A fourth defendant was convicted on lesser charges and sentenced to probation and community service. He did not join in the appeal.
Yesterday's ruling, which also affirmed the conspiracy count, said that the three men should be resentenced. Since first-degree convictions were upheld against Mr. Archer and Kevin Scherzer, their sentences are likely to remain undisturbed. But Kyle Scherzer, who now stands convicted of two second-degree charges, will see his sentence reduced to about seven years, which could make him eligible for parole after little more than a year.
But both sides have said they are considering an appeal to the New Jersey Supreme Court. If the court takes the case, then sentencing would probably be postponed.
J. Michael Blake, a lawyer for Kyle Scherzer, said his client had mixed reactions to the court's decision. "He believes he is guilty of no crime," Mr. Blake said. "He is happy that his sentence will be reduced but he is not pleased that his brother is not in the same position."
He said that the Scherzer brothers, now in their mid-20's, still live in New Jersey but not in Glen Ridge and that Mr. Archer is in Colorado.
Robert D. Laurino, a top Essex County sex crimes prosecutor, said he was weighing an appeal on the question of force and coercion. "Her will was overborne by the fact that there were 13 guys and one female in the basement, with one exit," he said. "She felt compelled to comply with their demands."
M. G., he said, is now employed on a department store cleaning crew.