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Parker Gilbert: Two Counts Thrown Out; Defense Ends Case Quickly

Trial Commentary: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7.

Yesterday Judge Peter Bornstein threw out two counts that had been lodged against Parker Gilbert by the prosecutor. He did so in response to a motion for directed verdict by the defense that was submitted on all eight counts in the trial after the close of the prosecution’s case. As the Valley News reported:

Bornstein chose to dismiss two of the charges that alleged Gilbert overcame the woman through the “actual application of physical force, physical violence or superior physical strength.”

Bornstein acknowledged that the woman testified that Gilbert pinned her hands behind her and placed his hands or fingers in her mouth and her head was pushed back on the bed. But Bornstein said that the state has acknowledged those actions came after a portion of the alleged assault had already occurred.

The D noted that the specific charges related to:

… the charge of oral penetration, as well as one of two charges of anal penetration.

Six counts remain against Gilbert: vaginal penetration through force, vaginal penetration through concealment or by the element of surprise before the alleged victim had an adequate chance to flee or resist, vaginal penetration when the alleged victim was physically helpless to resist because she was sleeping, vaginal penetration without free consent, anal penetration without free consent, and criminal trespass.

How are we to understand this ruling? Judges rule on such motions with various intentions. Obviously, Judge Bornstein wants to take a decision away from the jury on these matters, but he is also signalling to the prosecutor that she has overreached. The judge could could also be trying to put pressure on both sides to strike a deal. As for the jury, what are they to make of a ruling that there can be no finding of physical coercion for actions taken in the initial phase of the incident? The possible implication here is that there was at least some consent on the part of the complainant — but later on consent was not given.

Following the ruling, the defense presented its entire case by calling four witnesses to the stand: a retired FBI investigator; a sexual assault nurse examiner, and two Dartmouth students.

Bruce Koenig, a former FBI agent specializing in sound analysis, sought to show that whispered speech could be heard through a wall like the one separating the complainant’s bedroom from the dorm room occupied by her roommate (the roommate previously testified that she heard several minutes of whispering between Gilbert and the complainant before she heard the sound of consensual sex between them).

Nurse examiner Charla Jamerson was called as an expert witness. She disagreed with the actual DHMC examining nurse, Elizabeth Morse, that the complainant’s body showed evidence of bruising and lacerations. Jamerson stated that in reviewing the medical file she saw only evidence of redness, possibly the result of itching from bug bites or acne. She did find, as Morse had, that there were no injuries to the complainant’s mouth (the allegation had been made that Gilbert had forcefully put his hand into the complainant’s mouth).

Amanda Winch ‘16 testified that Gilbert had been at the TDX party on May 2 that preceded his visit to the complainant’s dorm room, and that he had been “goofy and smiley,” even though intoxicated.

Finally Gianna Guarino ‘15 took the stand. She was Gilbert’s dorm floor UGA. The Valley news reported:

Defense attorney Cathy Green asked Guarino if she remembered seeing the accuser dancing with Gilbert at a sorority party in February 2013.

Guarino said she did see the accuser come up to Gilbert and dance aggressively with him.

“Was it unusual to see women at Dartmouth dancing in that matter?” Green said.

“No,” Guarino said.

Last week during the trial, Green had asked the accuser if she remembered going to the same party in February 2013 and if she remembered seeing Gilbert and if she recalled dancing with him by pressing her body up against him simulating sex.

The accuser testified she didn’t remember seeing Gilbert at the party and she didn’t remember dancing with him.

Under the rules of evidence, the defense is not allowed to put forward testimony of previous sexual conduct by the complainant, but by describing a past, suggestive interaction between the defendant and the complainant, the hint is out there about conduct that the jury might find unpleasant. The account also amplifies the relationship between the two parties, and serves to undercut the allegation that Gilbert and the complainant did not have any sort of relationship prior to the night of May 2.

Juries are unpredictable, especially given the cultural context. We have no information on the profile of the jurors in the trial. They might well be shocked by the events themselves, and determine that these reflect badly on Parker — or they might be disgusted by the practices and habits of Dartmouth students, and conclude that the complainant is seeking via this trial, as she herself put it, to protect her “dignity.”

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