North Haverhill — The defense in the trial of Parker Gilbert ’16, charged with rape, began and rested its case Tuesday without calling Gilbert to the stand. On the seventh day of the trial, the prosecution rested and Judge Peter Bornstein ruled to dismiss two of the prosecution’s eight charges against Gilbert.
Without sufficient evidence that physical force had been used, Bornstein dismissed the charge of oral penetration, as well as one of two charges of anal penetration, but denied the defense’s motions to dismiss the remaining six charges. After these rulings, the defense began its case by calling four witnesses: Gilbert’s former undergraduate advisor, a female friend of his, a sexual assault examination nurse and an acoustic forensic analyst.
Gilbert, 21, is no longer enrolled in classes at the College. He was arrested May 15. Following Tuesday’s dismissals, he is charged with five counts of aggravated felonious sexual assault against a female undergraduate student, 19, and one count of criminal trespass for entering her room uninvited early in the morning of May 2, 2013. As a general practice, The Dartmouth does not identify alleged victims of sexual assault.
If convicted, Gilbert, of London, could serve up to 20 years in prison for each count of sexual assault.
The state, Bornstein said, failed to present sufficient evidence that Gilbert engaged in sexual penetration of the complainant’s mouth by overcoming her through the actual application of physical force, physical violence or superior physical strength. The complainant’s testimony last week, he said, demonstrated that the evidence was insufficient for the jury to find beyond a reasonable doubt that the defendant was the actor in oral penetration.
The two acts of physical force brought up by the state — that the defendant pinned the complainant’s arms behind her back and that he placed his fingers into her mouth while pushing her head back — occurred after the incident of oral penetration, Bornstein said.
Bornstein also granted the defense’s motion to dismiss the charge of anal penetration through the actual application of physical force, physical violence or superior physical strength. While the complainant may have been frightened and intimidated during the alleged anal penetration, he said, such circumstances are insufficient. The complainant’s alleged pain at the time of penetration, Bornstein said, is also inadequate proof of the use of force.
The judge denied the defense’s motions to dismiss the additional six charges: 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.
The defense then began its case, calling Amanda Winch ’16 to the stand. Winch, one of Gilbert’s close friends, said she saw Gilbert at Theta Delta Chi fraternity early in the morning of May 2. Winch said she and Gilbert, who seemed “quite intoxicated,” danced with a group of friends. He was “goofy and smiley,” she said, and seemed fine despite his intoxication. Winch is a member of The Dartmouth staff.
The defense’s next witness was Charla Jamerson, a forensic nurse and expert in sexual assault nurse examination from Fayetteville, Ark., who said she reviewed medical records and photographs of the complainant prior to testifying.
Jamerson, who was paid $150 an hour by the defense, said she was aware of the complainant’s allegation that Gilbert put his fingers into her mouth and that she engaged in fellatio on the morning of May 2. Jamerson said that in light of these allegations, she would have expected to see some injury to the complainant’s tongue or gums. The records did not reveal any injury to the mouth, she said.
Robert Cary ’86 then showed the witness a series of photos taken during the complainant’s examination. The pictures were displayed on a small screen visible to the witness and the jury but hidden to those seated in the gallery. Jamerson identified skin discolorations and irritations in various places on the witness’s body. Skin irritations could have various causes ranging from acne to bug bites, she said. Photos showed redness but no tears, abrasions, lacerations or bruises, she said.
During her cross-examination by Saffo, Jamerson confirmed that her evaluations were based solely on medical records, not on the alleged victim’s interview with the Hanover Police. Jamerson also confirmed that she never examined the complainant personally, and thus could not testify as to whether she winced or flinched during the examination.
Defense attorney Cathy Green, of Green and Utter, then questioned Gianna Guarino ’15, Gilbert’s former undergraduate advisor. Guarino recounted a party at Kappa Delta Epsilon sorority in February 2013, during which she observed a female student, whom she later identified as the complainant, dancing with Gilbert.
The defense’s next witness was Bruce Koenig, an expert on audio and video forensic analysis, to the stand. Gilbert’s attorneys hired Koenig to conduct audio testing in a two-room double structurally identical to the room in which the alleged rape occurred.
Using samples of the complainant’s voice taken from her police testimony and whispering samples from a database, Koenig played each clip from a small speaker placed in the outer room of the two-room double. He recorded the clips using two microphones in the adjoining room, one placed on a desk analogous to where the complainant’s roommate said she studied and one in a location analogous to her bed.
Koenig then analyzed each recording’s intelligibility and audibility, he said.
The analysis showed that all samples were audible in the adjoining room. While the samples were slightly less understandable from the bed than from the desk, only the quietest whispering in both locations had “very limited intelligibility,” his analysis showed.
The complainant’s former roommate testified on Thursday that while she was studying at her desk the night of the alleged attack, she heard heavy breathing, which she associated with sexual intercourse, but she did not hear anyone fall to the floor. She said the only distinct statement she heard was “don’t push me.”
To preserve the complainant’s anonymity, The Dartmouth has not identified this witness or other floormates of the alleged victim. The former roommate is a member of The Dartmouth staff.
Saffo opened her cross-examination by asking Koenig if his analysis presumed that someone was actively listening.
“People, depending on the person, can ignore the acoustic environment around them,” he said.
The defense then rested its case.
Court will resume at 9 a.m. tomorrow morning.
