The appeal was started immediately, with briefing later in 1998, and in early 1999, oral arguments were made before the Appellate Division. After an unusually lengthy wait for such a decision, the Appellate Division ruled on Dec. 21, 1999. The Appellate Division set aside the conviction, freeing Oliver Jovanovic and ordered a retrial, saying the trial court had made critical errors including erroneously barring the use of several e-mails, which could have been crucial to the defense's case. In making its decision, the Appellate Division found that the trial court had egregiously misapplied the state's Rape Shield Law in this particular case.
The suppressed e-mails are significant because they show that the accuser was interested in and experienced with sado-masochism, something which she had denied at trial. It also allows the defense the chance to show at retrial that the allegations of sado-masochism were fabricated by the accuser.
The ruling is also significant because:
In the majority portion of the decision, Justice David B. Saxe wrote that the fact that the trial judge, Acting Justice William Wetzel, had not allowed the e-mails into evidence had an "enormous" effect on the defense. In essence, it left the jury with a "distorted view of the evidence."
Justice Saxe ruled that e-mails by the accuser showing her interest in S&M would have highlighted "both the complainant's state of mind on the issue of consent, and [Jovanovic's] own state of mind regarding his own reasonable beliefs as to the complainant's intentions."
Justices Richard T. Andrias and Israel Rubin joined Justice Saxe in the majority opinion.
In a partial dissent, Justice Angela M. Mazzarelli claimed that the majority view of the Rape Shield Law in this case would effectively return to the past when one way for defendants to contest such charges was by attacking accusers and their sexual history and predilections.
Oddly enough, Justice Mazzarelli ruled that the evidentiary errors required a retrial on the kidnapping and sexual abuse counts - but not on assault charges. (Those stemmed from claims by the accuser that Jovanovic bit her on the breasts until she bled profusely and that he burned her with hot candle wax). The lack of bite marks, burns or scabs three days later, and the lack of any bloodstains or wax was apparently inconsequential to Justice Mazzarelli, as was the issue of the accuser's credibility. Justice Mazzarelli focused on a claim made by a distant neighbor that she had heard a loud noise coming from Oliver Jovanovic's apartment at a different time; however Justice Mazzarelli completely ignored testimony by two immediate neighbors that they had heard absolutely nothing at the time his accuser claimed to have been screaming.
But the majority said it found that by barring some evidence - and at the same time allowing other e-mails - the trial court let the prosecution "present to the jury a compelling story of a woman being drawn into a cyberspace intimacy that led her into the trap of a scheming man."
"However," the majority continued, "its compelling nature was due in part to its one-sided and unbalanced nature. This imbalance resulted from the trial court's ruling precluding Jovanovic from effectively challenging certain aspects of the complainant's presentation. Where he should have been given free rein to explore the complainant's truthfulness, her accuracy in relating her experiences and her grip on reality, he was instead precluded from inquiring into several highly relevant statements contained in the complainant's e-mails to him."
The e-mails in question concerned the accuser's involvement in S&M with a man identified in the decision as "Luke." In one e-mail passage in the decision, she said:
"Now I'm his [Luke's] slave and its [sic] painful, but the fun of telling my friends 'hey I'm a sadomasochist' more than outweighs the torment."
And in another redacted e-mail, the accuser said: "Yes, I'm what those happy pain friends at the Vault call a 'pushy bottom.' " (The Vault is a Manhattan S&M club; a pushy bottom, the decision noted, is a submissive partner who pushes the dominant S&M partner to cause more pain.)
Other excluded parts of the accuser's e-mail which dramatically described a rape of a friend - later determined by police to have never occurred - as well as a sadistic assault on her "master" Luke - closely mirroring what she claimed occurred with Jovanovic - were found to be crucial to the defense that the claim of attack was concocted.
These portions were also held to raise serious questions as to the accuser's veracity and reliability. Members of her family subsequently told the media that she had a history of making false allegations.
The justices also held that these portions were relevant as to the issue of any injuries. Oliver Jovanovic's accuser claimed that she had been hogtied for nearly 20 hours and beaten and sexually assaulted with a police baton. Nevertheless, she claimed she somehow managed to fight him off and escape while putting on her clothes, including her boots. The only injuries found by a gynecologist who examined her three days after the alleged attack were a few yellowing bruises on her torso. Experts testified at the trial that the appearance of the bruises was inconsistent with her story. The defense maintained he had not caused them. The accuser claimed that they were caused by him, and she could "not recall" any other source of the bruises. The excluded e-mail, however, suggested otherwise.
The appellate court judges also took pains to stress that the Rape Shield Law was simply inapplicable to the facts in this case, had been misapplied by the trial court, and would in no way be diminished across-the-board in other cases by the findings. "We fully recognize that a woman's character or reputation for chastity is irrelevant to a charge that she was sexually assaulted," the justices ruled. "Our holding is simply that the Rape Shield Law, by its terms, is inapplicable to the evidence the trial court held to be inadmissible."
The court added that it was concluding that the redacted e-mails were not subject to the Rape Shield Law because "they did not constitute evidence of the conduct of the complainant. Rather, they were merely evidence of statements made by the complainant about herself to Jovanovic."
Yet even if assuming no distinction could be properly made between prior conduct and statements about prior conduct, the majority noted: "We would still hold that the Rape Shield Law does not support the preclusion of the e-mails at issue, because we conclude that these statements fall within a number of the exceptions set forth within the statute."
All of this was prejudicial to the defense, the majority wrote, also noting that the net effect of this was that it "gutted Jovanovic's right to testify fully in his own defense."
"As the case stood, Jovanovic was precluded not only from bringing out the degree to which the complainant seemed to be inviting sadomasochism, but from exploring the possibility that the complainant was a less reliable narrator of events than she appeared at trial."
"For instance," the majority found, "the prosecutor was able to repeatedly ask the rhetorical question, 'Why would she lie?' while the defense was unable to point to an evidentiary basis for any plausible reason, although more than one existed."
"In light of the degree to which the defense was hampered, both in demonstrating that the complainant had consented to participating in sadomasochism, and in challenging the complainant's reliability and credibility as a witness, the conviction must be reversed in its entirety," the majority concluded. "Upholding the conviction on the assault charges, as the dissent suggests, would ignore the prejudice resulting from Jovanovic's inability to adequately challenge the complainant's credibility and reliability."
The prosecutorial and judicial misconduct at the trial was so extreme that the appeal actually raised 11 serious issues. The decision focused on only one of these issues - Acting Justice William Wetzel's misapplication of the Rape Shield Law. The trial court's Rape Shield Law rulings were so manifestly unfair that the appellate judges did not find it necessary to issue rulings on the other errors, some of the most serious of which were:
Extensive prosecutorial misconduct. At one point Assistant District Attorney Gail Heatherly actually said: "You don't have to provoke the complaining witness to answer untruthfully if you don't ask her the question". Heatherly misrepresented evidence and made improper, false and inflammatory statements throughout her summation.
Copies of the full decision are available online.
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