Silent Mercy (19 page)
“Again. It’s wearing thin.”
It was smart to have a witness present when the possibility of confrontation so clearly loomed, and I couldn’t ask for a better one than Mercer.
Gina was a sophomore at an expensive prep school on the Upper West Side, the daughter of two professionals. The accused, Javier Valdiz, was a scholarship student at the same school. On the night she claimed a crime occurred, Gina’s parents had invited Javier to spend the night at their apartment, in her older brother’s empty bedroom, after a party that both kids attended.
Unbeknownst to the Borracellis, on the way to the party, Gina had filled an empty sixteen-ounce seltzer bottle with her father’s vodka. She and a girlfriend had finished drinking the entire thing by the time Gina and Javier returned home.
I went over the facts with Mercer and invited Mrs. Borracelli to sit down opposite me. She knew the claim—that two days later, Gina told her boyfriend that Javier had forcibly raped her in her bedroom that night, while her parents slept in the next room.
I began by asking Mrs. Borracelli to repeat the story to me, as Gina had related it. I listened, but my eyes were still playing with the letters of the alphabet that Naomi Gersh had scribbled on a piece of paper, trying to make sense of them.
“Did you know Gina had been drinking that night?”
Mrs. Borracelli pulled herself up, looking at me indignantly. “No, not at my house. She’s too young, but for the occasional glass of wine with dinner.”
“Would it surprise you to know where she got her vodka, and how much she had?”
“From Javy, I’m sure. From the boy.”
“That’s not what she told me. I suggest you ask her that directly, and check your own liquor cabinet.”
“I would be totally shocked. I’ll ask, but that would shock me.”
“Does Gina have a drinking problem, do you think?”
“All the girls at her school drink, Ms. Cooper. What’s your point? I can’t police her all the time. You think that means she can’t be raped?”
“Not in the slightest. A great percentage of our cases occur when the victim has been drinking. The alcohol intake often makes them more vulnerable. I’d just expect my witnesses to be honest about it. I can’t help girls who won’t be candid with me. A judge and jury won’t help them either.”
“And my Gina—she didn’t tell you?”
“No, she didn’t. It was the other girls at the party—and Javier’s lawyer—who told me. She denied it completely until I confronted her with what her best friend had said.”
Many of these investigations took more time than a straight-forward stranger rape. In those instances, victims had no reason to dissemble. They didn’t know their assailants and hadn’t spent time together, as acquaintance- and date-rape survivors did before the assault. The latter sometimes tried to make themselves appear more “proper”—to family and to law enforcement—by minimizing their alcohol and drug intake, or the amount of consensual foreplay. In the end, there was often a rape charge, but it was muddied by facts the witnesses foolishly tried to conceal.
“What else, Ms. Cooper?” Mrs. Borracelli was arch now. “Gina said to ask you about other things she told you. She said it was easier for me to hear them from you.”
“Why don’t you stay calm, ma’am? Ms. Cooper isn’t trying to give you a hard time,” Mercer said.
“Whose side are you on, anyway?” she asked. “You’re Gina’s lawyer, aren’t you?”
“No, I represent the state, Mrs. Borracelli. My job is to get at the truth, before I take Javier or any individual to court.”
“I want someone to represent Gina.”
“Ms. Cooper will be the best ally your daughter ever had,” Mercer said, “if she’s forthcoming. You think this boy isn’t telling his lawyer everything that happened that night? You think both sides of this story won’t come out at a trial, if there are two sides?”
The expression on Mrs. Borracelli’s drawn face wavered between confusion and anger.
“Did Gina tell you that Javier was wearing a condom?” I asked.
“So, what difference does that make? I’ve read about rapists. How they carry condoms with them sometimes so that they don’t leave their DNA behind.”
“He didn’t bring any along that night. They weren’t his.”
Javier’s lawyer had told me how his client claimed the encounter became sexual. Not that I didn’t often get total fabrications from the defendants. But frequently I got a nugget of truth that broke down some of the elements of the victim’s story.
“Do you know about the little box that Gina keeps in her bathroom?” I inquired.
Mrs. Borracelli was not so quick to talk. “What box?”
It was Javier’s lawyer who told me to ask the girl about it. Her “box of bad things” is how she’d laughingly described it to her schoolmate.
“It’s a small enameled case she keeps under the sink.”
“I don’t ever look at her things. The maid cleans that room.” I had the feeling that any minute now this entire episode would be blamed on the family maid. I’d be right behind her.
I didn’t need to tell Gina’s mother right then about the marijuana and the rolling papers she hid in the box. “It’s where she keeps a supply of condoms.”
Mrs. Borracelli slumped back in the chair. “You’re saying she gave Javier the condom? Is that what she told you?”
“On her third visit here, that’s what she told me.” Getting a statement from the teenager had been like pulling teeth. I had chipped away at her story with bits of information that came from the alleged rapist and her closest friends.
Gina had admitted that after she and Javier were “fooling around” on her bed, she left the room to undress—he never pulled her clothes off, as her original statement read—and to bring a condom for him from her stash in the “box of bad things.”
This back and forth of deconstructing the evidence went on for another ten minutes. Mrs. Borracelli dabbed at tears with her embroidered handkerchief. Her voice softened as she looked to Mercer as an ally in this.
“But why would she do this, Mr. Wallace? Why would she exaggerate so much?”
“It’s not the first time, ma’am. I can’t answer that.”
“Gina may have given the reason in the texts she wrote, just minutes after Javier left her room.”
Mike referred to that kind of message, which cyber cops had pulled up and printed out for me, as TWI: texting while intoxicated. Rare that the contents of them didn’t come back to haunt the sender.
“But he spent the night in our home. How could he do that if he raped her?”
“You can put all the facts together, Mrs. Borracelli. I don’t think you’ll find that there was a rape. I suppose like most kids, Gina thought there’d be no record of her texts,” I said, removing a sheaf of papers from my file. “But they’re all saved in the memory of the cell phone. I’ve given Gina a copy. I had hoped when she left here last week she would show them to you herself.”
“What do they say, Ms. Cooper?”
Gina had texted Javier after he tiptoed out of her room and went down the hall to sleep. She was giddy with the mix of intoxication and what she described as lovemaking. Her only concern was that he not tell any of the kids at school that they had hooked up, for fear that one of the girls might call her boyfriend—her “real” boyfriend—who was away at boarding school.
“I’m going to let Gina tell you that. I want you to hear it from her. Ask her to show you the photos she sent along with the message.”
Sexting—using the cell device to send photos, in this case, nude shots of herself, usually wound up circulating among school friends and out to the world on Facebook or some other social network.
After Javier left the Borracelli apartment, Gina slept till noon, then kept a doctor’s appointment to get shots for a trip to Africa for which the family was preparing. She mentioned nothing to the doctor, missing an opportunity to be examined for injuries or possible DNA. It was only two days later, when girlfriends began asking her if it was true that she had slept with Javier, that Gina was compelled to come up with a story: that he had forced himself upon her.
Mrs. Borracelli looked defeated. I had been in this unhappy position countless times before, but it saddened me on so many levels whenever it occurred. “I don’t know if she will tell me anything at this point.”
“Why?”
“She said this morning that she didn’t want to see Javier prosecuted.”
I was glad she had reached that conclusion. I couldn’t find any evidence of a crime.
“Gina just wants him to be thrown out of school,” Mrs. Borracelli continued. “She doesn’t wish to see him anymore.”
Doesn’t wish to see him? So she calls their tryst a rape? I had a new training case for the office rookies who came fresh from law school, anxious to grow the skills to reach the pinnacle of prosecutorial ranking: homicide assistants. They would have to work their way through drug deals and petty thefts, learning how to dissect cases and discern truths from every witness who walked through the courthouse doors.
“Gina’s probably embarrassed at this point,” Mercer said. He knew me well enough to recognize that despite the early hour, my temper was ready to snap. “That’s a pretty harsh sanction for what the two of them embarked on together, don’t you think, ma’am?”
The woman didn’t respond.
“Javier’s on a college track, just like your daughter,” I said. “There was no force here, Mrs. Borracelli. There isn’t a crime I can charge. I don’t see any reason to eject him from school, just to make things right between Gina and her boyfriend. And one more thing, may I?”
“I’ll never be able to explain this to my husband. She’s still his baby.” Mrs. Borracelli was wringing the handkerchief now. “Yes? What else is it?”
“Ask Gina to tell you what she did with the condom.”
“You mean, you fault her because she didn’t save it as evidence?” The anger rose in her again.
In more than a dozen years on the job, I had rarely known a witness to be as cavalier as Gina, or do something as revolting. I understood throwing condoms in the toilet or garbage—ugly reminders of the forced sexual act—at a time when the police lab wasn’t foremost in one’s mind.
“No, I don’t fault her for anything she did. Except lying.” I wanted that point to be clear. “Gina tossed the condom out the window of your apartment, Mrs. Borracelli.”
“I don’t believe you.” Her words were sharp and meant to be stinging.
“The police recovered it from a flowerpot on the terrace of a neighbor, three floors below you. You don’t have to believe me. The detective has photographs. And Mr. Delson, in 6B, was rather disgusted. He’s not likely to forget it.”
“What happens now?” Mrs. Borracelli asked.
My phone rang and Mercer walked over to Laura’s desk to answer it.
“I’d like Gina to make a statement—she can do it in writing, or she can sit down with Detective Vandomir. I think she gets along with him.” She liked anyone better than she liked me. I had played the eight-hundred-pound gorilla often enough to feel as though I had gained the weight necessary to look the part. “I want her to tell the story—the truth—from beginning to end. If it doesn’t spell out a crime, the entire matter will be dropped.”
“And my Gina? What will happen to her?”
Mercer stood in the doorway, one hand cupped over the receiver of the phone. With the other, he pointed his thumb over his shoulder, signaling me to get rid of Mrs. Borracelli.
“She’ll have learned a very hard lesson in the worst way.”
“But for lying, you won’t arrest Gina, will you?”
I stood up to escort the woman out of my office. I had mounted many prosecutions for filing false police reports. The fabrications wasted time and energy for dedicated cops, but mostly made it more difficult for the next rape victim to be credited by people to whom Gina had disclosed the bogus crime.
“No. Fortunately, we caught this before Gina testified under oath. I think she needs counseling, Mrs. Borracelli.” I put my arm behind her back, trying to move her along more quickly. “I think she needs attention to her drinking and drug issues.”
“Ms. Cooper,” she said, stopping in her tracks when I most needed to get clear of her, “will you help me tell my husband these facts? He’s a very difficult man. I doubt Gina will be able to talk to him about this.”
“I’m working on a murder investigation, Mrs. Borracelli. Two murders, in fact. Detective Vandomir will do everything possible to help. Would you mind stepping out while I take a call?”
The witnesses who lined up in the complaint room of our office every morning, seven days a week, needed triage as badly as patients in an emergency room. This woman was about to go to the back of the pack.
I returned to my desk and picked up the phone. Mercer stayed on the line and told me it was Manny Chirico on hold.
“Hello again. Past your bedtime, isn’t it, Manny?”
“Just playing around on my computer before I knock off. Mercer said you haven’t had a minute yet to get back on the case.”
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