Man who shows penis to jury acquitted of sexual assault

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NEW HAVEN — Desmond James was uncomfortable with the idea of dropping his trousers in the courtroom and showing jurors his penis.

But he agreed to do it after his attorneys convinced him it was “the only option” for disproving the description of his penis by the complainant in James’ sexual assault trial.

The unusual strategy worked. On Friday, after about three hours of deliberations, the jury found James not guilty on all three counts of first-degree sexual assault.

The complainant told police that her assailant was a black man whose penis was not as black as the rest of his body. Defense attorneys Todd Bussert and Erica Barber said there was direct evidence that this was untrue.

“It became clear the only option we had was to just have him stand up and show this to the jury,” Bussert said after court adjourned Friday. “It was not something he wanted to do. It was humiliating, to have an African American stand up in court and show himself. It had racial issues. But he understood why we made the request. It allowed the jury to see the evidence.”

Bussert added, “One of the things they taught us in law school is to use the best evidence you have. It is what it is. Obviously it was a very unusual situation. But we felt it was the most persuasive evidence we had.”

Bussert said of James, “I think it really shook him up. But I think he realizes, having taken that step, that it helped win the day.”

Before the dramatic display occurred Wednesday, Superior Court Judge Elpedio N. Vitale tried to prepare the jurors by telling them they were about to see some evidence of “a highly sensitive nature.”

“We’re all adults here,” Vitale noted.

Approximately one hour beforehand, Bussert said, “I personally checked” to be certain the complainant was wrong about the color of his client’s penis versus the rest of him. “I had to make 100 percent sure,” he said of his private meeting with James.

Bussert said that when James showed his penis to the jurors, “It was for only three to five seconds, tops. I was timing it. I didn’t want it to go on any longer than it needed to go. I didn’t want to humiliate him any more. The judge left it up to me. I said, ‘OK, we’re done.’”

Bussert said he was too preoccupied with keeping track of the time to notice the jurors’ reactions. But Barber recalled, “One of the women looked away. One of the male alternate jurors looked as if he was trying not to have an outburst. I’m sure they were shocked but they did a good job of not showing it.”

A person who works in the courthouse said word quickly spread about what was about to unfold in the courtroom. “The room became packed. It was mostly court employees.”

A judicial marshal said he has worked in the courts for decades and “I’ve never seen that happen before.”

Bussert noted that in his closing argument, “I argued that his penis is actually darker than the rest of his body: the exact opposite of what the complainant said.”

Bussert told the jurors: “For that reason alone, you must acquit.”

In his remarks after court adjourned, Bussert noted the complainant reported she was forced to engage in sexual intercourse and oral sex in a backyard in Meriden on March 22, 2012. She reportedto police that day that she believed her assailant was Hispanic because he spoke Spanish to her and told her he was from Puerto Rico.

Two years later, in November 2014, the complainant saw James’ photo in a newspaper story about another crime in which he was a suspect. She claimed she immediately recognized him as the man who had attacked her in 2012.

Bussert and Barber argued during James’ pretrial proceedings that the identification was unreliable because two years had passed and basing her identification on a single newspaper photo was insufficient and “suggestive.”

Senior Assistant State’s Attorney Stacey Miranda, who prosecuted James, could not be reached for comment Friday.

James did not walk out of the courthouse as a free man Friday, despite the not-guilty verdict. He is serving a 65-year prison sentence for a home invasion in Meriden in October 2014 during which he sexually assaulted a 10-year-old girl.

A New Haven Superior Court jury in December 2016 convicted James, then 25, of Waterbury, on three counts of first-degree sexual assault, risk of injury to a minor and home invasion. Police said he climbed through a window and attacked the girl in her bed.

When James, also known as Jose Diego Gonzalez, was sentenced by Superior Court Judge Jon C. Blue in February 2017, Miranda called the defendant a “monster” who makes children and their families forever fearful.

randall.beach@hearstmediact.com