Prosecutors may get conviction in Steubenville rape trial, but it will come at a cost

STEUBENVILLE, Ohio – In the early morning hours of August 12, 2012, Evan Westlake served as designated driver for three of his Steubenville High football teammates and one 16-year-old West Virginia girl he believed to be highly intoxicated.

He thought he'd done well by getting them all safely to the home of Mark Cole, one of his Big Red teammates. As Westlake was heading out, he walked into the living area of the basement and witnessed what should've been considered a rather troubling scene.

The girl was completely naked on the floor, laying motionless on her side, not far from where she'd just puked out of the side of her mouth.

By her side was one of his teammates, Trent Mays, who Westlake testified was fully exposed and smacking his penis on the girl's hip. Laying behind her was another player, Ma'lik Richmond, whom Westlake testified he saw penetrating the girl with two fingers, "halfway to the knuckle."

"It wasn't what I expected to see," Westlake testified Friday at the Jefferson County Justice Center here in this old Eastern Ohio mill town, where Mays and Richmond stand trial for rape. "I wasn't really sure what to think."

Why didn't you stop it, special prosecutor Marianne Hemmeter asked?

"Well," Westlake said, "it wasn't violent. I didn't know exactly what rape was. I always pictured it as forcing yourself on someone."

Let's ignore the obvious point that you don't need to "force" yourself on a girl who is incapacitated by alcohol. Instead, let's simply ask what did Evan Westlake do?

"I said my goodbyes," he testified.

Goodbyes? And what exactly was the response from Mays and Richmond after having someone walk in on them in the middle of that moment – even if, as the defense is arguing, it actually was consensual?

"They said, 'I'll see you Monday at football,' " Westlake said.

See you Monday at football?

That bit of scene reconstruction from the witness stand is but one of about a million dumbfounding moments in this closely-followed trial. Mays, 17, and Richmond, 16, are being charged as juveniles for raping the girl after a night of partying last summer.

If convicted both face imprisonment until age 21. Each has maintained their innocence as the trial, now in its third long day, stretches into the weekend.

As much as the alleged wicked deeds of the two boys is on trial, so is the culture of a pack of Steubenville teens, most of whom are members of the economically-depressed city's powerhouse Big Red football team. For years, critics of the program have said players were able to act without concern for laws or decency, and it's that sense of entitlement that led things like the casualness of what Evan Westlake witnessed in Mark Cole's basement.

It's clear from testimony that this group of friends ran around at all hours of the night with little to no parental supervision, and they at least believed that legendary football coach Reno Saccoccia was capable of helping them get out of trouble. Saccoccia told the Cleveland Plain Dealer on Friday he expects to testify at the trial.

Walter Madigan, the defense attorney for Richmond, argued Thursday that the nonchalant way the defendants said good bye to Westlake in that basement suggests that they didn't think they were engaged in any wrongdoing, and thus that this was, indeed, consensual sex.

What's also possible, however, is that they didn't think they were engaging in any wrongdoing because they never thought they ever engaged in any wrongdoing – either too unaware or arrogant to grasp even basic decency.

Friday was a bad day for Mays and Richmond. Judge Thomas Lipps provided immunity from state prosecution to Westlake, Cole and Anthony Craig in exchange for eyewitness testimony of the defendants engaging in various sexual incidents with the girl.

All three initially invoked their Fifth Amendment rights against self-incrimination and refused to testify. But once the deal was in place, they described everything in detail.

They each also stated the girl was heavily impaired, if not unconscious. They join a now lengthy list of witnesses claiming the girl being either drunk or drugged and thus incapable of consenting to anything.

"She wasn't moving," Craig said of witnessing essentially the same basement scene as Westlake. "She wasn't talking. She wasn't participating."

[Related: Focus of Steubenville trial shifts to teens' text messages]

This is backed up by text messages recovered from Mays himself, where he notes to friends "she was barely moving" when explaining why they didn't have intercourse. Friday also brought eyewitness testimony from Cole that Mays also tried to force the girl to perform oral sex on him. This followed Thursday's testimony when a forensic computer experts displayed a text message from Richmond where he claims to have performed oral sex on the girl.

Yet through it all, no one did anything to stop the alleged attacks or have it even register that something wrong was going on.

Instead they joined in on the degradation. Earlier in the night, Mays digitally penetrated the girl while Cole sat right next to him in the backseat of the Volkswagen Jetta that Westlake was driving.

Westlake testified Friday that during the ride he heard laughter from Mays and Cole in the backseat despite music playing loudly. Westlake claimed at one point Mays said, "Get this," perhaps urging someone to film what was happening.

Soon after Westlake saw a light from a cell phone in the dark but continued to concentrate on the road. Cole testified that the light was from the camera on his iPhone 4 and he was filming about a two-minute close up video of Mays violating the girl. Faced with a fairly simple ethical situation, Cole made a porno.

Mays' defense attorney, Brian Duncan, attempted to raise the possibility of consent by asking Cole on cross examination if he could hear the girl speak at all or if the girl actually spoke directly to him at all during the act.

"I couldn't make out what she said," Cole testified.

Duncan went on to argue that such a lack of verbal engagement made sense because why would a person having sex speak to a person watching.

"[Have you] seen guys [digitally penetrating] girls [other times]?" Duncan asked. "Yeah," Cole said somewhat sheepishly.

Wait. What? This wasn't even the first time he watched a friend engage in this? Cole was now some kind of an expert witness on the verbal interaction between witness and recipient of such an act.

"Did that girl who was being [digitally penetrating] speak to you?" Duncan asked, never broaching the question of whether that girl consented or not.

"No," Cole said.

"She was probably talking to the guy who was [digitally penetrating] her," Duncan surmised.

"Yeah," Cole agreed.

Cole didn't have a good explanation of why he not only declined to stop Mays, but instead decided to film his friend digitally penetrating a girl who just moments before was sprawled out in the middle of a street, in just shorts and a bra, puking, while the group of boys offered each other three bucks to whomever would urinate on her first. [None did, which is about the only humiliation the girl avoided.]

Craig, for his part, also took a picture of the naked girl. He then texted it to numerous people at Steubenville High, despite saying he considered the girl, who attended a different high school across the river in West Virginia, "a friend."

One of the people who received the naked photo of the girl sent to him was Cole, who later sent Mays a text about it.

"No, like serious Trent, you can't be doing that," Cole texted in perhaps his only moment of awareness. "And is that your [expletive] [semen] on her stomach?"

"Ha, ha, ha," Mays texted back. "Yeah."

Despite all of this, none of the witnesses face any legal issues with the state of Ohio. Not for filming. Not for picture taking. Not for failing to step in or later report the alleged crime.

They got lucky that the deleted photos and videos couldn't be forensically recovered and that their testimony was deemed important enough in trying to convict Mays and Richmond.

The offer of immunity may well work, but it comes at a cost. For if Mays and Richmond are convicted, then those who whipped out cameras during the criminal acts still walk free.

It was all no big deal, until they wound up frightened and fidgety on a witness stand.

"I felt a lot of regret," Westlake testified.

"It was stupid," Craig testified.

"You realize you did something wrong or stupid," Cole testified.

Too little. Way too late.

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