Jury selection continued Wednesday in the highly charged webcam spying case of a former Rutgers University student accused of cyberbullying his gay roommate, who days later leaped to his death from the George Washington Bridge.
Dharun Ravi has not been charged in the 2010 death of his roommate, Tyler Clementi. But he faces 15 counts of invasion of privacy, witness and evidence tampering, hindering prosecution, and the most serious charge – bias intimidation, a hate crime that could draw a 10-year sentence.
Mr. Ravi is alleged to have used a friend's computer to view an intimate encounter between Mr. Clementi and another man in the dorm room Clementi and Ravi shared. Ravi is also alleged to have invited friends to watch streaming video of another encounter a day later. The second viewing never took place and the invitation has been described by defense lawyers as just a joke.
As the digital trail of tweets, texts, and Web chats has been unearthed and parsed by defense lawyers and prosecutors since Clementi's death, what appeared at first to be an open-and-shut case has turned out to be anything but, legal experts say.
Prosecutors will rely on a mountain of electronic data to prove their case – but it is the interpretation of what was communicated digitally that will determine the outcome.
And proving bias intimidation may be even harder for the prosecution.
"A jury has to be sure beyond a reasonable doubt that the accused is guilty of intimidating someone because of their sexual orientation," says Chris Adams, a Roseland, N.J., criminal defense attorney. "But that may be difficult given some of Clementi's comments in which he didn't seem to care that he had been seen – and still other comments by Ravi that indicate he really didn't care that his roommate was gay. That could create a lot of uncertainty for jurors."
Clementi and Ravi were both freshmen and knew each other only for about three weeks before the cascading series of events – mostly played out on social media with curiously few face-to-face exchanges – inextricably linked the two young men.
Clementi requested a new roommate on Sept. 21, 2010, the day after he became aware that he had been allegedly spied on two days earlier. Then, on the night of Sept. 22 he updated his Facebook status to, "Jumping off the gw bridge, sorry." His wallet and cellphone were found on the bridge.
Almost instantly after Clementi's death, media and pundits seized on the case as another example of a gay man being bullied to death – this time using cyber techniques. Early reports falsely claimed that video of Clementi having sex was broadcast over the Internet for viewing by anyone.
Defense lawyers are expected to argue that prosecutors were overzealous in seeking an indictment. They will say that evidence from witnesses and social media records show that Ravi was not homophobic, and that the events of Sept. 19 were grossly distorted when prosecutors presented their case to the grand jury.
Ravi turned down a plea bargain in December 2011 that would have meant no time in prison, but 600 hours of community service and counseling. The state also assured Ravi, an Indian citizen, that it would recommend he not be deported. So why turn down the deal and embrace an uncertain outcome in court?
Another possibility is that Ravi and his attorneys are confident the charges against him are weak and can be defeated. Clues suggesting this appear in a minute-by-minute timeline documented in court papers that describe a situation in which Ravi was asked to leave his dorm room by Clementi, who was eager to have a tryst with an unknown individual known only as "M.B."
Saying he feared his iPad might be taken, Ravi connected to the webcam on his laptop from a friend's dorm room down the hall – and observed Clementi and another man kissing for about two seconds, before switching it off. It was the only time Ravi viewed Clementi this way, defense lawyers for Ravi wrote in a brief.
Clementi soon discovered he'd been spied on when he read a tweet written by Ravi, mocking the incident. But he later wrote to a friend that it was "s000 funny."
"It was still wrong to do," he continued, "butt I remembered [the] green light [on the camera] turning on and as I went to turn the cam around it turned off. But it's not like he left the cam on or recorded or anything. he just like took a five sec peep lol."
Such electronic records may make it difficult for prosecutors to convince jurors that Clementi felt intimidated or bullied by Ravi's actions, says Mr. Adams.
Ravi also later joked about the incident to friends in a tweet, and invited them to view his roommate, who had again invited M.B. to the dorm room. Ravi's attorneys contend that he disconnected the laptop webcam to make sure no one would look in on his roommate. And Clementi – who was aware of the earlier incident and apparently feared being spied on again – told friends that he cut power to Ravi's computer.
But other electronic files created shortly after Clementi told his parents he was gay a few weeks before he went to college, which he named "Why is everything so painful" and "sorry," have been ruled inadmissible by Judge Berman. A hand-written note found in Clementi's backpack was also ruled inadmissible.
A key point the defense will likely highlight is Ravi's concern after he learned Clementi had requested a new roommate.
"I've known you were gay and I have no problem with it. In fact one of my closest friends is gay and he and I have a very open relationship," Ravi texted Clementi. "I just suspected you were shy about it which is why I never broached the topic. I don't want your freshman year to be ruined because of a petty misunderstanding, its adding to my guilt. You have the right to move if you wish but I don't want you to feel pressured to without fully understanding the situation."
But that last message may never have been seen. It was sent at 8:56 p.m. – 14 minutes after Clementi's last text message.