STEUBENVILLE, Ohio – It's the photo that sent shock waves around the globe and put an unmovable spotlight on the Steubenville rape scandal, the trial of which opened Wednesday with graphic testimony flying inside and snow squalls swirling outside here in this old steel town on the Ohio River.
In the photo, a slumped and seemingly passed out 16-year-old West Virginia girl is being carried, her wrists grasped by Steubenville Big Red football player Trent Mays, her ankles by teammate Ma'lik Richmond.
Her head is sagged back, her hair dragging on the floor. She looks, if not dead, then incapacitated. With the context of the two boys having been charged with her rape, the natural reaction of anyone of any measure of decency was horror.
This looked like an innocent girl being hauled off for … well.
Even months after the photo hit the Internet courtesy of an affiliate of the hacking group Anonymous, it remains a visceral cornerstone of this hotly debated and closely followed case that has come to include the legal obligations of bystanders, most notably the people who took the photo or witnessed the scene it depicts.
It is also emblematic of the immense challenge facing defense attorneys, who must change perceptions and deconstruct, in painstaking detail, incident after incident, photo after photo and – in what might come as soon as Thursday – eyewitness after eyewitness testimony of not just the specific acts of rape, but a culture of boorish behavior among a crew of young Steubenville High athletes.
[Related: Steubenville rape trial divides Ohio town]
"This is a court of law, not a court of public opinion," said Walter Madison, the attorney for Richmond as he stood outside the Jefferson County Justice Center late Wednesday afternoon, with giant snowflakes sticking to his overcoat.
For that, he is fortunate. Across five hours Wednesday, Madison made clear he is an excellent attorney – quick, smart and engaging. Yet while Judge Thomas Lipps, who alone will determine guilt or innocence, might be swayed, the public at large has long made up its mind and additional details are likely to only make it worse, no matter how well things are spun.
Mays, 17, and Richmond, 16, have been charged for raping the girl after a night of partying last August. Since both were charged as juveniles they face imprisonment until they turn 21. Each maintains their innocence.
The most powerful evidence could come from two eyewitnesses.
One is Mark Cole, who testified at a preliminary hearing in October he videotaped Mays using his fingers to penetrate the possibly passed out girl in the backseat of a car.
Later Cole, and friend Anthony Craig, testified they saw Mays again digitally penetrating the girl in Cole's basement while an exposed Richmond attempted to put his penis in the girl's mouth and later slapped it on her naked hip. More camera phone photos were taken at that time – including one described Wednesday of both the girl and Mays naked from the waist down – although they were soon deleted.
The prosecution is expected to call both Cole and Craig, perhaps as early as Thursday's expected 11-hour session. Each could still plead the Fifth Amendment in an effort to avoid future legal trouble. While both received letters from the Ohio Attorney General saying they wouldn't be charged for the videotaping or photos, that isn't the same as full immunity.
In the meantime, the events and mindsets surrounding the terrible "End of the Summer" party played out in court, with the defense literally on the defensive as it tasked itself with trying to prove that what at first looks and sounds incriminating might simply be a matter of perspective.
"Everyone's perception of [an] event is different," Madison said after court adjourned. "We've taken time, as you heard with the witnesses, and we examined – and that's the true test, cross examine – what they said and saw and believed."
Consider the infamous photo, which the state considers such a valuable piece of evidence that prosecutors brought multiple copies with them to the small, third-floor courtroom. That includes an oversized blow-up version that special prosecutor Marianne Hemmeter called, "the big one" before showing it to one witness on Wednesday.
Madison and fellow defense attorneys Brian Duncan and Adam Lee Neeman who represent Trent Mays, were able to effectively make the case that the photo isn't as brutal as it first appears – which isn't to say it's some innocent snapshot.
Testimony from Elayna Andres, a sober, 17-year-old girl who witnessed the alleged incident described the victim as someone who had just forcibly declined an offer for a safe ride back to her friends and away from the boys, who had walked to the door before stumbling to the ground and who was not passed out, even though she was believed to be intoxicated.
"She was conscious," Andres testified. In fact, the girl wasn't actually carried anywhere like that, testimony concluded. The guys put her down after the photo was snapped. And Andres wasn't alarmed enough to prevent them all from leaving together.
The problem for the defense is this: The moment they could argue that the girl perhaps wasn't as completely trashed as the picture suggests, more ugliness emerged.
She might not have been dragged to the car by her alleged attackers, but she didn't just jump up and innocently walk out, either. Mays scooped her up, carried her over one shoulder and took her through the door. Besides, it was just minutes later that she lay in the street in front of the house, puking on the pavement with her shirt off, wearing only a bra, as a group of boys watched.
That included Patrick Pizzoferrato, who isn't facing charges, yet acknowledged on the stand Wednesday that he pulled $3 from his pocket and offered it to anyone who would urinate on the girl.
One of the kids who, at least vocally, claimed to be considering the offer was Ma'lik Richmond.
"He was asking if he should piss on her," said witness Jake Howarth.
That's how this case is likely to go for the defense – a Sisyphean task of explaining away one inexplicable act, then upon perhaps managing to do so, having another come rolling back down the hill.
The defense spent plenty of time Wednesday trying to extract testimony that suggested the girl wasn't really all that drunk, laying the groundwork to suggest she was capable of consenting to sex later.
Yet isn't a girl laying in just a bra in the middle of the street a sign of extreme drunkenness, especially after witnesses saw her drinking Stoli Vanilla vodka mixed with blue Slushee and at least one beer at a party?
"I don't know," Madison said after court. "You've got to ask the person. Everyone is different. You maybe can handle your beer better than I can, you may have had a bad pot of collard greens earlier that day and the alcohol is not agreeing with your stomach. So that's a case-by-case basis. And that's what the law asks us to consider."
So it was just a bout of food poisoning? That's going to be a tough sell.
As for the urination-offer incident – which isn't a crime because no one acted on it, but suggests the guys knew she was intoxicated and offered her little respect – Madison led Pizzoferrato into an excuse: "It was funny for you."
"I made it as a joke," Pizzoferrato agreed from the stand. He later added, "I don't think anyone thought I was serious when I said that."
Madison, meanwhile, compared it to the longstanding tradition of young people laughing at friends who drink too much.
"She became the butt end of the joke because she was the drunkest," he argued.
It was a potentially fair bit of perspective until prosecutor Hemmeter quickly jumped to a one-question redirect of Pizzoferrato, pouncing on the chance to blow up the "she-wasn't-all-that-drunk-after-all" defense strategy.
"Mr. Madison asserted you always make fun of the drunkest person in the room," Hemmeter said. "Was [the girl] the drunkest person in the room?"
"Yes," Pizzoferrato said.
"No more questions, your honor," Hemmeter concluded.
That giant photo of the girl being carried by the defendants was still resting, undeterred alongside Hemmeter's table.
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