Initially, the jurors who acquitted former Broncos cornerback Perrish Cox of rape opted not to talk about their decision. The foreman of the jury has had a change of heart.
“We were struggling with what we imagined could’ve happened versus what we were being asked to decide by the court,” jury foreman Mitch Summerfield told 9news.com.
The alleged victim claimed she was raped after she passed out in Cox’s apartment in September 2010. Cox denied to police that he had sex with the alleged victim, who was pregnant with a fetus whose DNA matched Cox’s DNA.
“As part of the jury, we said, ‘Absolutely, beyond a reasonable doubt’ that we believe he was the father and there was sex involved at some point,” Summerfield said. “When that was and what condition she was in at that time — there was no evidence presented.”
But if the victim claimed she was passed out, and if Cox opted to tell police not that the alleged victim was awake and the sex was consensual but that he never had sex with her, what more did the jury need?
Though it’s possible Cox panicked when he was interviewed by police and opted to deny having sex with the alleged victim instead of trying to prove consent, Cox had the ability to take the stand at trial and say he had lied to the police, and that he had consensual sex with the victim.
That’s where the Fifth Amendment often hits a third rail. Cox’s decision not to testify can’t be regarded as evidence of guilt, but his decision not to clarify the record of evidence resulting from his decision to waive his Fifth Amendment rights when meeting with police should have received greater weight from the jury.
Instead, the jury wanted affirmative proof that the sex occurred at a time when the alleged victim was passed out, something that only one person necessarily would have witnessed — and the only evidence from him was that no sex occurred.
“We would’ve needed to have known that she was really in a bad state when she was in that position,” Summerfield said. “At that point, we possibly could’ve said, ‘OK, he should’ve known that.'”
Still, it’s clear that the six-man, six-woman jury had misgivings about the outcome. “All the women were crying on the way back from the courtroom,” Summerfield said.
Though it’s always easy to point fingers at the losing side in a trial, it seems as if the prosecutors in this case could have done a better job of making sure that the jury understood that they had all the evidence they needed to prove that a rape occurred. Innocent people who have consensual sex typically don’t deny having sex at all, and they don’t decide not to rectify on the witness stand a statement given to police that, based on the verdict, the jury necessarily regarded as a bald-faced lie.