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Prosecutor Maxine Wilensky: Caught off guard.
In a courtroom shocker, a judge Monday dismissed all pending sexual-assault charges against Rabbi Daniel Greer, after his lawyer pointed out a fundamental prosecutorial screw-up.
That development took place in Superior Court on Church Street as both sides completed presenting evidence in the child-rape trial of the prominent New Haven rabbi.
Prosecutors found out on Monday morning that they’d chosen the wrong second-degree sexual assault charge to stick on Greer, because the accuser hadn’t met all the requirements in the statute of limitations.
Greer will now stand trial for only four charges of risk of injury to a minor, which can still lead to a 20-year maximum sentence for each count that could be stacked consecutively up to 80 years.
The second-degree sexual assault charges could’ve doubled that, and it would have come with a mandatory minimum of nine months in prison that couldn’t be suspended or reduced by the court.
Connecticut has different definitions of second-degree sexual assault. Generally, they include all situations where a person uses their power, supervision or authority to coerce a victim into unwanted sex. Nine of those definitions can be pursued in criminal court more more than three decades after the crime occurred.
Only one of those definitions has to be reported to police within five years.
Prosecutors mistakenly chose that one time-limited definition — even though their central witness waited 10 years to come forward with his allegations.
After his final witness stepped down from the stand Monday, Willie Dow, Greer’s defense attorney, moved to dismiss the entire case against the rabbi. That’s just a formal convention that’s almost never supposed to work. But living up to his reputation as one of Connecticut’s legendary defense attorneys, this time it did for Dow.
Dow argued that there was not enough evidence for a reasonable juror to convict his client. Anyway, he added, the claims of sexual assault were too old to prosecute.
“I’m just wondering why I’m dealing with this now,” Judge Jon Alander said.
“I thought the state would have known” and amended their complaint already, Dow said.
“It was a tactical decision, based on my study of the law,” he added. “I don’t want to be handcuffed” by when I can present this issue.
The text of the law clearly indicated that state prosecutors had picked the wrong type of second-degree sexual assault.
That last-minute maneuver left the two state’s attorneys sitting in a stunned silence. Maxine Wilensky said she was having trouble finding the right part of the statute; Karen Roberg typed on her iPhone. A law clerk brought over a bound copy of the laws. Judge Alander called for a recess to review the statutory language he said looked “odd.”
Defense attorney Willie Dow outside court with Rabbi Daniel Greer.
In 2002, shortly after the Boston Globe’s investigation into sexual abuse by Catholic priests, the Connecticut legislature overhauled its statute of limitations for child sex crimes, which are often charged as second-degree sexual assault. Those were meant to accommodate the delays in reporting that often come with the trauma of being molested.
The revisions extended a previous two-year deadline to 30 years after victims become adults or five years after they go to law enforcement, whichever happens first.
Those time limits would apply to any number of scenarios that lawmakers had added to a broad definition of child sex abuse, including when a school employee engages in sexual intercourse with a student.
Connecticut was among the earlier states to reform its statute of limitations for childhood sexual abuse, Marci Hoffman, a scholar at the University of Pennsylvania and research chair at Cardozo Law School, had previously told the Independent. While it hasn’t gone as far as the roughly 15 states that have eliminated their time limits altogether, their decades-long window is “pretty generous,” she said.
But in the 2002 revision, the lawmakers decided to keep a stricter timeline for one specific type of second-degree sexual assault, which is essentially statutory rape.
They decided, when the perpetrator has sex with a minor between 13 and 16 years old, the crime must be reported to law enforcement within five years to be prosecuted.
Prosecutors went with that statutory rape definition, rather than the school employee definition. That proved to be an unfixable blunder.
After a 40-minute break to research the issue Monday, Roberg sought to argue that the 2002 revision “wasn’t in effect when our allegations took place,” when a former yeshiva student, Eliyahu Mirlis, said he was repeatedly raped between 2002 and 2005. Mirlis didn’t go to the police until mid-2016.
In deciding the issue, Judge Alander said that the time limits for that one specific type of second-degree sexual assault struck him as “an odd provision.” But “it doesn’t mean we’re not all bound by it,” he said.
“In its infinite wisdom, the legislature added a provision, … which is that, for sexual assault in the second-degree, the complainant must notify within five years of the commission of this offense,” Alander continued. “It is undisputed in this case that Mr. Mirlis did not notify within five years of the alleged commission. So that makes the charge of sexual-assault in the second degree time-barred.”
He dismissed the four counts against Greer, which prosecutors had charged for each type of sex act that the rabbi allegedly committed with the then-15-year-old Mirlis.
It was already too late for the state’s attorneys to change it.
According to the Connecticut Practice Book that guides how lawyers must go about trying a case, prosecutors can make a “substantive amendment” to their charging document before the trial begins.
But afterwards, their hands are largely tied. The Practice Book says that “for good cause” right up to the verdict, a judge might let prosecutors amend the charging document, but only as long as there’s no additional or different charges or a violation of the “substantive rights” of the defendant.
Anything more, like substituting a different offense, would require “the express consent of the defendant,” it says.
Both sides are to present their closing arguments on Monday afternoon, before jurors hear instructions from the judge and begin deliberating about the four remaining counts of risk of injury to a minor on Tuesday morning.
If jurors acquit Greer, there’s still an open legal question of whether he could be taken back to court under a different second-degree sexual assault charge without violating his Fifth Amendment rights against “double jeopardy,” which generally prohibits being tried twice for the same crime.
Prosecutors declined to comment on Monday evening about how they decided what to charge.
Dow also declined to comment about why he waited so long to bring up the statute of limitations, but he did say he was still focused on the remaining charges.
“We’re facing four equally serious charges, and I hope the jury applies the law of reasonable doubt,” he said. “I don’t want to win the battle and lose the war.”
Previous coverage of this case:
• Suit: Rabbi Molested, Raped Students
• Greer’s Housing Corporations Added To Sex Abuse Lawsuit
• 2nd Ex-Student Accuses Rabbi Of Sex Assault
• 2nd Rabbi Accuser Details Alleged Abuse
• Rabbi Sexual Abuse Jury Picked
• On Stand, Greer Invokes 5th On Sex Abuse
• Rabbi Seeks To Bar Blogger from Court
• Trial Mines How Victims Process Trauma
• Wife, Secretary Come To Rabbi Greer’s Defense
• Jury Awards $20M In Rabbi Sex Case
• State Investigates Greer Yeshiva’s Licensing
• Rabbi Greer Seeks New Trial
• Affidavit: Scar Gave Rabbi Greer Away
• Rabbi Greer Pleads Not Guilty
• $21M Verdict Upheld; Where’s The $?
• Sex Abuse Victim’s Video Tests Law
• Decline at Greer’s Edgewood “Village”?
• Rabbi’s Wife Sued For Stashing Cash
• Why Greer Remains Free, & Victim Unpaid
• Showdown Begins Over Greer Properties
• Judge: Good Chance Greer’s Wife Hid $240K
• Sex Abuse Too Much For Many Jurors
• Potential Greer Juror Grilled On “Truth”
• Greer Jury Finalized
• Greer’s Accuser Recounts Sexual Abuse
• Attorney Grills Greer Accuser
• Religion’s Role Raised In Greer Trial
• Another Greer Accuser Testifies
• Trial Question: Can Sex Crimes Victims Love Their Abusers?