Toxicologist pressed at cops' rape trial

Opening a new front in their defense, lawyers for two New York City police officers charged with raping an intoxicated woman in 2008 after escorting her home pressed a government expert Monday to say that the accuser wasn't too "physically helpless" to consent to the sex.

But forensic toxicologist Michael McGee told the defense lawyer for Officer Kenneth Moreno that a surveillance video of the woman walking under her own power around 1 a.m. didn't mean that she would have been able to resist a few hours later when, she says, Moreno stripped and raped her.

"A person at this blood-alcohol concentration could walk at one point and not walk at another, be conscious at some points and not at other points, and fade back and forth in between," McGee told lawyer Chad Seigel. "She could range from unconsciousness to apparent normality."

Moreno and his partner, Officer Franklin Mata, are charged with rape under a provision of New York law that makes it a crime to have sex with a person who is "incapable of consent by reason of being physically helpless." The trial in Manhattan Supreme Court is in its fifth week.

The victim says she was intoxicated after a night of partying, and kept passing out and blacking out -- but remembers the sex. She testified that she was so drunk she couldn't move as it happened, and passed out. Video cameras show the cops returned to her East Village apartment three times after helping her out of a cab and inside.

The officers have denied that any sex occurred and suggested that the accuser was too drunk to have a reliable memory of what happened. Still, the lawyers acknowledged Monday that they were also pursuing an alternate defense -- that even if jurors conclude there was sex, the accuser was not too "helpless" to resist or consent.

The accuser, a Gap fabric designer, spent much of Dec. 7, 2008, celebrating a promotion by drinking. Based on readings the next day, McGee estimated she had a 0.24 to 0.32 level when the officers responded to a call for assistance from her cabdriver.

She had been alert enough to give the driver her address, and video showed her walking with the officers under her own power. Although the toxicologist said very drunk people don't "typically" become more and more sober as time passes, Seigel did get him to concede that was the most frequent pattern.

"I'm not sure how to interpret 'typical,' " McGee said. "I've just testified there can be a wide range. But I can agree with more times than not."