The New York Times-20080125-Judge Throws Out Rape Indictment of Councilman
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Judge Throws Out Rape Indictment of Councilman
A State Supreme Court justice threw out the rape indictment against City Councilman Dennis P. Gallagher on Thursday, finding that prosecutors had prejudiced grand jury members while presenting the case against him.
In a 26-page decision, Justice Sheri S. Roman said that in questioning Mr. Gallagher before the grand jury, Queens prosecutors had improperly delved into his marriage and sex life and had created the impression that as an elected official, he should be held to a higher standard than an ordinary citizen.
The questioning was so far out of line, the judge concluded, that one grand juror complained to prosecutors that the questions appeared be an attempt to make Mr. Gallagher look foolish.
The judge's ruling, however, was only a partial victory for Mr. Gallagher, a Queens Republican, as it lent support to the evidence and left open the possibility that prosecutors may seek a second indictment. The Queens district attorney, Richard A. Brown, immediately said he intended to do so.
As the court noted in its decision, 'The testimony and evidence presented to the grand jury was legally sufficient to support each and every one of the counts charged,' Mr. Brown said in a statement. Accordingly, the matter will be re-presented to another grand jury before which the defendant can once again, if he be so advised, testify.
In her ruling, Justice Roman concluded that had the grand jury presentment consisted of the complainant's testimony alone, the evidence, if accepted as true, would have been sufficient to support all of the charges.
She added, however, The court also finds that the grand jury proceedings were impaired to such an extent that prejudice to the defendant clearly resulted.
Prosecutors accused Mr. Gallagher of raping a woman in his Queens campaign office on July 8 after meeting her at a neighborhood bar. A grand jury indicted the councilman on 10 counts of rape, criminal sexual acts and assault. Mr. Gallagher, who was free on $200,000 bail, acknowledged having sex with the woman but insisted that it was consensual.
Mr. Gallagher, one of three Republicans on the 51-member Council, has retained his seat throughout but was temporarily removed from his leadership posts and committee assignments while the case is proceeding.
Prosecutors presented the case to the grand jury over four days beginning July 26, and questioned Mr. Gallagher, who testified against his lawyer's advice.
Among the questions prosecutors asked him was: Would you agree you have an elevated responsibility as a role model to the families of your constituency? They also asked him about his relationship with his wife and whether there was any sex life between them.
Two jurors asked at different points to consult a judge about the propriety of the questions. As a role model -- is he considered a role model? one juror complained. I don't know what that has to do with the case. I honestly don't.
A prosecutor rejected the jurors' request to speak to a judge and said the questions were perfectly legal. Mr. Gallagher's lawyers moved to have the indictment dropped on the basis of prosecutorial misconduct.
We maintained the integrity of the grand jury proceedings were severely impaired by, among other things, the improper questioning of Councilman Gallagher, said Benjamin Brafman, his lead lawyer. Judge Roman agreed completely, and to her credit she had the personal integrity and intellectual honesty to dismiss all the charges.
Mr. Brafman said he would try to persuade the district attorney not to pursue the case. We have maintained from the beginning that this was a consensual act between two adults and that there never was a rape, he said.
Stephen R. Mahler, who was Mr. Gallagher's first lawyer and was present during the grand jury proceedings, said, From the outset, the prosecutors tried to portray Mr. Gallagher as a slick politician about to pull the wool over the eyes of the grand jury.
Mr. Gallagher, a married father of three, declined to comment on Thursday and referred questions to his lawyers. His supporters on the City Council, meanwhile, were ecstatic.
Councilman Peter F. Vallone Jr., a Queens Democrat and a former prosecutor, said Mr. Gallagher had made an error in judgment but did not commit rape. He urged Queens prosecutors to drop the case.
Justice is now done, he said.
Two Republican council members, James S. Oddo, the minority leader, and Vincent Ignizio, issued a joint statement: Dennis Gallagher has already begun to make the necessary changes in his life, and the judge's decision this morning affords him the chance to reclaim his life. They added that while Mr. Gallagher admitted to morally challenged behavior, from Day 1 he has steadfastly maintained his innocence.
[Illustration]PHOTO: Grand jury questioning of Dennis P. Gallagher was ruled prejudicial. (PHOTOGRAPH BY ULI SEIT FOR THE NEW YORK TIMES)