by Christine Schaack McGoey
When the trial of four of those men began on September 21, 1992 nobody guessed that the “Glen Ridge case” would run six months to verdict. Nobody would have wanted to believe that the case would be tried on rape myth or that the prosecution’s hard-won convictions would be gutted by a sentencing judge voicing his concern for the defendants’ pain. The clues were there, however, for anybody who wanted to look.
From the moment charges were filed against the defendants, the public and the media were captured by the case’s soawful-you-can’t-look-away quality: The extremely vulnerable victim, the betrayal by those she trusted, the implements used in the rape. But as awful as those elements were, the root of this horror-fascination went deeper: “Nice boys” committed this rape. Popular, welleducated and well-to-do suburban, white guys from “good” families stuck a baseball bat into a retarded girl’s vagina for after-school fun and joked about it the next day. The reality of who the Glen Ridge rapists were slammed head on into one of this society’s most strongly held and promoted myths about rape – that “regular guys” don’t rape. That, as Robin Warshaw wrote in I Never Called It Rape (Ads. Magazine/Sarah Lazin Books, 1988), rapists are dangerous strangers, preferably from some minority group, who ambush women from dark, secluded places.
The “regular guys” myth drove the defense and shaped its courtroom tactics. “Take a good look. Take a long look,” attorney Michael Querques challenged the jury as he yanked his client defendant Kevin Scherzer by the arm and shoved him up against the jury box, eye to eye with the jurors. “What you see, because he is up close…is who I have been calling a young man …I brought him up here because yesterday [during opening arguments] I heard Mr. Goldberg [the prosecutor] tell you that he is a heinous, venomous person, that he is guilty of first degree crimes, which is a bunch of crimes that are exceeded only by murder.” Kevin Scherzer, Querques was saying, doesn’t look like a rapist.
When the jurors looked at the defendants Christopher Archer, twins Kevin and Kyle Scherzer, and Bryant Grober they saw the raw material for a Calvin Klein ad – four tanned and 20-something men with the hard, square shoulders of weight-lifting athletes. Archer appeared daily in a blue blazer, button down shirt and tie, khaki trousers and loafers. The Scherzers and Grober stuck to dark suits. All of the defendants and their attorneys quickly became friendly with the courtroom’s male bailiffs. From time to time, as the jurors filtered through the courtroom on their way to the jury room, they could catch a glimpse of one of the defendants or their attorneys joking with the uniformed officers.
The defendants also filled the first three rows reserved for their use on the “defense” side of the courtroom with well dressed family members and friends. A few days into the trial, pretty young women with lots of hair and an abundance of bows also appeared – one noticeably pregnant. Another of these women, supposedly the girlfriend of Kyle Scherzer, took to weeping during the closing hours of the trial and wiping away her tears with rosary beads she kept conspicuously wrapped around her fingers. To complete the picture, two men in clerical collars who identified themselves as Episcopalian priests sat with the defendants’ families on a regular basis. (As witnesses, Susie and her family were barred by court order from the courtroom until their testimony was completed and it was certain that there was no need to recall them to the stand.) The implication was clear: God, family, and girlfriends stood behind these men; they couldn’t be rapists.
There was only one problem with the picture, and it was a big one. The defendants did not deny that the “sex” acts had occurred. In fact, some of the 13 participants had given police incriminating statements. The defense out, in keeping with the myth, not only was that Susie consented to the assault, but that she engineered it – all of which presupposed that the functional eight year old had the mental capacity to consent, a point contested by the prosecution. Since “nice” guys wouldn’t think of using objects to rape a woman, Susie had to be a nymphomaniac slut who deserved what she got. She had to be blamed for her rape.
The defense assault on Susie began with opening arguments and quickly grew to dominate the months-long trial proceedings. Since each defendant was represented by his own attorney, and each attorney had the right to argue any point as he wished and to fully question every witness, the defense attack was multiplied four times. The effect was staggering. Direct testimony of prosecution witnesses receded from memory during the hours and sometimes days of cross-examination that followed. Answers almost ceased to matter as the repetitive questions pounded out the defense’s theme – a theme so overwhelmingly presented that it virtually controlled the daily press coverage.
Susie – a person who couldn’t make change or understand that everyone wasn’t her friend, who in earlier years had arrived home from play with her arms covered with welts from other children’s pinches, and who had eaten dog feces at the urging of the then-little Scherzers and others because she didn’t know enough to refuse – was portrayed as a dangerous, sinister temptress. The defense charged that she was a “full breasted,” “devious,” “sexually aggressive” “Lolita” who was “ready, willing, able, and anxious” to be assaulted and “who would do it again.” Susie’s retardation supposedly made her “obsessed” with sex and a danger to the defendants. “What did you do,” Querques demanded of Susie’s mother, “to protect the young people, the young males, in the event they touched her?”
Witnesses were asked about every detail of Susie’s private life. Did she ever talk about boys or about sex? Did she swear? Did she smoke cigarettes? Did she display any other “immoral” behavior? Was her family dysfunctional? Hadn’t her sister used drugs? And in “did you ever hear that…” or “isn’t it true that…” form, defense counsel continually insinuated, among other things, that Susie had bared her breasts in school, had sex in a school tower, and was expelled from school for sexual misconduct. (Susie’s mother testified that like a small child her daughter had difficulty removing pullovers without the T-shirts underneath lifting. The “sex” turned out to be a touch. A counselor explained that Susie was never expelled: She transferred because she needed special classes. The counselor believed that another student had posed a rape threat to Susie.)
New Jersey’s rape shield law as interpreted by Judge Benjamin R. Cohen did nothing to prevent these types of questions. Nor did it stop the defense from plumbing Susie’s medical, psychological or gynecological records and arguing that her use of birth control pills proved promiscuity. (Susie’s mother testified that she obtained birth control pills for her daughter and hid them in her food after Susie’s vulnerability to sexual assault became apparent.) Cohen also turned rape
shield on its head when he allowed defense attorneys to introduce evidence that Susie had been “sexually active” since she was 12. Cohen refused to let the prosecution show that the “activity” was actually a sexual assault which took place two weeks before Susie’s twelfth birthday.
By the time Susie took the stand in early December 1992, the jury had heard weeks of testimony from teachers, family members, friends and experts about her mental limitations. Everyone in the courtroom had heard that she blamed herself for the defendants’ predicament, believing mat they wouldn’t have been “in trouble” if she hadn’t broken her “promise not to tell.” Pressure from other young people to lie or drop the charges had only increased this feeling. Everyone heard that Susie still considered the defendants her friends and accepted anyone as a friend who smiled or spoke to her politely. Susie was easily led and highly suggestible, would do anything for a friend, and was desperately ashamed of being retarded. Defense counsel used these limitations to continue to attack Susie in the courtroom, just as their clients had used them to rape her in the basement.
Before Susie took the stand, the defendants changed their seating arrangement. Throughout the month of prior testimony, the defendants sat along the south wall of the courtroom, directly facing the jurors. As Susie’s testimony approached, the defendants took new seats behind their counsels’ tables, facing the judge and the witness stand, approximately 20 feet away. The defense also packed the first two rows of spectator benches directly behind the defendants with big young men. When Susie finally took the witness stand, she faced rows of young men staring her down, not unlike what she must have seen in the basement on March 1, 1989.
Susie’s limitations were abundantly clear the second she began to testify. Her plain, pudgy face registered emotions in response to questions with the kind of directness and intensity typical of children – a full pout, eyebrow-scrunched confusion, head-rolling embarrassment. Her voice came out high and vacant, sing-songy and baby-like. On direct examination, while she struggled to answer prosecutor Robert Laurino s open-ended questions about what had happened, her eyes kept flitting over to the defendants. Later, during re-direct examination, she would tell Laurino that it was hard to testify with “the boys right there” because “they’re too close.”
Susie described how Archer had tricked her into the basement crammed with young men, chairs set up “like the movies.” Grober told her to “suck my dick” and other defendants “stuck things up my vagina” while the men called her names and urged one another on. She didn’t tell them to leave her alone because she “didn’t want to hurt their feelings.” She could hardly bear the embarrassment of telling the jury it hurt to go to the bathroom after the assault. And when it came time to identify the defendants, she rose to her feet, wrung her hands, and literally begged Launno in a whisper, “do I have to do it? Pleeeze – puhleeeze, do I have to?”
The defense took her apart. During the two days of cross examination, each defense attorney (except one whose opportunity to question came last and decided for whatever reason to forego), stood close to Susie and spoke to her in comforting tones. The physical closeness and friendly appearance were cruelly calculated to allow each to use Susie’s retardation against her. Querques, for example, approached and asked,
“Can you tell I’m nervous?”
“You don’t look it,” Susie answered.
“I’m afraid to ask you questions,” he said. “Don’t be afraid,” Susie said, like she was comforting a doll. “I’m a nice girl.”
“Let me tell you why I’m afraid,” said Querques, “…Because [unlike the prosecutors] I’m not your friend.”
“You’re not my friend?” Susie asked in surprise.
“Please, pretty please Susie,” Querques said, “will you try to be my friend for a couple of hours…?”
“Ya, sure…,” she said.
Once he had her confidence, the attorney asked strings of leading questions which suggested yes or no answers. Susie fairly predictably supplied the answers sought by her new friend. Yes, she wanted to go to the basement. No, nobody forced her. Yes, she wanted to do “it.” And in a particularly ugly exchange with Querques, who demonstrated a special flair for inflicting injury on a retarded rape victim, Susie even conceded that she wasn’t retarded.
“Some people say you’re retarded, but that’s not true is it?” asked Querques.
“A lot people call me that at school,” Susie answered, hanging her head.
“But you’re not retarded…If you were retarded you couldn’t answer these questions, right?”
Susie vehemently agreed. Querques then pointed to the prosecutors. Those people, he told Susie, the ones you think are your friends, they’re telling “the whole world” that you are retarded. Susie went white with pain.
The contrast between Susie and Paul Archer, defendant Christopher Archer’s brother and the only major witness called by the defense, could not have been greater. Paul Archer moved with the easy confidence of someone convinced of his own good looks. He turned his blue eyes on the jurors and told them Susie had not been tricked into the basement. Instead, Paul said, Susie offered to give Grober a “blow job.” Grober accepted against the advice of Chris and Kevin who told him, “You’re crazy.” The oral sex supposedly made Susie so “horny” that she then begged for intercourse. Since none of the men were willing to comply, Paul claimed that she then “asked to have something put inside. She asked for a beer bottle, but Kyle refused.” Kevin helpfully suggested a broom, which she allegedly inserted into herself. “She was moaning,” Paul claimed, “saying this feels so good …I want something bigger…she asked for something bigger,” and was given a bat. (Paul’s testimony contradicted the statements he had given at his in-court plea bargain where he said that Kevin and Chris inserted the broomstick and Kevin attempted to insert the bat.)
Stretching the myth, the defense further argued that what happened in the basement was normal male sexual expression. It was an “erotic episode” according to Thomas Ford, Archer’s attorney; boys “taking license with their friends” according to Querques. Remember, Querques told the jury, “boys will be boys.” “You people,” he asked, “are you going to forget about the girls [you] knew in high school who were loose and the boys took? Are men going to forget, hey, I got a girl who is loose, do you want to join me?” As Paul Archer put it, in his opinion, no crime had been committed in the basement. Susie “wasn’t being mistreated.” She wasn’t being “physically injured.” The question was whether the jury would buy into the myth too.
The case finally went to the seven woman, five man, racially-mixed jury on March 4, 1993. In an inspiring victory for the prosecution and for Susie, the jury rejected the “regular guys” defense. The jury convicted Chris Archer and Kevin and Kyle Scherzer of first-degree sexual assault (rape) and second-degree conspiracy in connection with the assaults with the implements.
These convictions were especially strong statements. At trial, Judge Cohen had allowed the jury to hear testimony that first and second-degree crimes carried “substantial” prison terms. The admission of that evidence was hotly contested, since juries are usually sheltered from sentencing information to prevent them from deciding cases on sympathy. Even though the jury was keenly aware that its convictions meant prison time for three defendants, it did not hesitate.
The jury, however, only convicted Bryant Grober of a third-degree conspiracy charge – a probation offense. The defense seemed to have raised enough doubt about this more “normal” sex act to prevent the jury from convicting. As one juror reportedly explained to the press, he thought that if Susie had been open to performing fellatio in the past, she might have done so willingly again. On the other hand, on a TV morning show the day after the verdict, juror Michelle Grimes stated that the convictions were about “respect.” She explained that the jurors felt you just couldn’t do that to another person and get away with it, no matter who you were. Unfortunately, the judge didn’t see it that way.
“The defendants are young men, not hardened or vicious, not without redeeming values,” Cohen said just prior to reading his sentence. “I understand the pain of the defendants and their families as well as the victim’s.” His sentence, however, showed that he gave much more weight to the defendants’ pain than to the crime committed against Susie. Under New Jersey’s sentencing guidelines, the first-degree convictions carried 10to 20-year sentences with a presumptive term of 15 years. The second-degree convictions carried 5 to 10-year sentences with a presumptive term of 7 years. Cohen crafted a sentence that evaded these guidelines. Although Archer and the Scherzers had been tried as adults and were over 21 at the time of trial, Cohen sentenced them as Young Adult Offenders to indeterminate sentences not to exceed 15 years in a Youth Correctional Facility. Failure to set a minimum means that the length of the defendants’ sentences are totally within the discretion of the Department of Corrections and the Parole Board. As Essex County Prosecutor Clifford Minor explained at his extraordinary April 23, 1993 press conference expressing outrage at the sentences, “theoretically these defendants could apply for parole the day after they are incarcerated and be out in six months.”
To add insult to injury, Cohen also refused to revoke bail pending appeal or to set bail higher than $2,500. Cohen stated mat he didn’t believe the convicted rapists posed a threat to the community, despite the fact that a second woman had submitted an affidavit stating she had been raped by Archer. Cohen dismissed the affidavit as a “mere allegation,” even though the woman was prepared to testify at sentencing and had subjected herself to civil and criminal liability by swearing to the affidavit’s truth. As described in court papers, the sealed affidavit described an eerily similar rape during which Archer proclaimed that he was a rapist. Unless a higher court overturns Cohen’s bail ruling, die convicted rapists will remain on the streets and won’t serve even their lax sentences for years. The sentences were designed to sound good, but to ensure that the men would serve no time. Cohen gutted the jury’s verdict and gave the “regular guys” a pass.
It is hard to imagine Cohen designing such a sentence if the defendants were not privileged, white males. Harder yet to imagine him going against what prosecutors report is standard procedure by refusing to remand such defendants to custody immediately upon conviction for a first-degree felony. Unthinkable that Cohen would refuse to consider evidence that another type of defendant had raped again while his case was pending.
The lesson from the Glen Badge case is simple: As long as rape myth controls rape trials, rapists will walk free. Judges, if not jurors, will see to it.
Attorney, writer and activist Christine Scliaack McGoey daily monitored the Glen Ridge, New Jersey rape trial as an Essex County NOW member.