Prosecutors are wrapping up their case against Dharun Ravi, a former Rutgers University student charged with using his computer's webcam to spy on and cyberbully his dorm roommate. But legal analysts who have been following the trial say the prosecution has struggled to build a solid case on the most serious charge: that Mr. Ravi targeted his roommate because he was gay.
Some go so far as to say prosecutors didn't present irrefutable evidence as to Ravi's motive for attempting to humiliate his roommate, Tyler Clementi. Clementi killed himself on Sept. 22, 2010, and an investigator testified this week that Clementi, in his final hours, had viewed one last time Ravi's online posts on the social media site Twitter – something his computer records show he had monitored 59 times over the previous nine days. Clementi had saved two screen shots of things Ravi had tweeted about him.
"The bias aspect of the case is still weak," says John Fahy, a former New Jersey prosecutor. "Prosecutors have presented a very good invasion-of-privacy case, but [they] also have to show that he [Ravi] tried to intimidate his roommate because of his sexual orientation. I don't think they have shown Ravi hated gays or hated his roommate because he was gay."
Robert Honecker, a New Jersey prosecutor for 25 years now in private practice, has a similar assessment. "What stands out is that among the witnesses, particularly his friends and those he was with, each and every one of them said Ravi never exhibited to them antigay or homophobic sentiments and was not affronted by that type of sexual orientation," he says.
The case, being tried in New Jersey before Middlesex County Superior Court Judge Glenn Berman, has already become a national symbol of antigay bullying. That, plus its similarities to other cases of meanness and bullying via high-tech tools and social media, means the trial has attracted heavy media attention.
"This is a case where, for the first time, prosecutors are utilizing many different social network mediums – Twitter, text messaging, Internet and computers, webcams – to prove a criminal case," Mr. Honecker says. "Young people use these mediums as if they are in face-to-face conversations, and they need to recognize that anything in these social networking forums can be retrieved and utilized to establish crimes."
Prosecutors argue that Ravi set up a webcam on his dorm-room computer to watch Clementi and a guest, known in court as M.B. He witnessed Clementi and M.B. kissing. Ravi subsequently laid plans to watch via webcam a second tryst, according to prosecutors, and urged others to take an online look, with the intent of humiliating Clementi because of his sexual orientation.
Ravi has not been charged in Clementi’s death. He faces 15 counts of invasion of privacy, witness tampering, hindering prosecution, and the most serious charge, bias intimidation, a hate crime that could draw a 10-year sentence. The standard for conviction on bias intimidation is "beyond a reasonable doubt."
Jurors, of course, will be the last word on the intent behind Ravi's tweets and deleted text messages. In one tweet, according to investigators who probed Ravi's digital devices, Ravi invited his friends to tap into his webcam to watch Clementi in private moments with M.B. But Ravi later sent tweets that appear to reverse his invitation – a move prosecutors say was part of Ravi's effort to cover up his actions and tamper with evidence.
Ravi did delete some tweets and phone records, according to testimony. Prosecutors say that shows Ravi was trying to obstruct justice and tamper with evidence.
"The problem is: Did he know he was under investigation?" says Mr. Fahy. "You have to know that you are being investigated in order to be convicted of tampering with evidence – and in this case he may not have known that."
The prosecution was most effective at bolstering the invasion-of-privacy charge – building the case that Ravi had arranged for a followup viewing of his roommate's trysts after an aborted initial viewing, analysts say. Still, some cite a few damaging digital comments that indicate Ravi may have targeted Clementi because he was gay.
For instance, Ravi tweeted this message to friends on Sept. 19, 2010, after turning on his dorm-room webcam from a friend's room: "I saw him making out with a dude. Yay." On Sept. 21, he sent another tweet "daring" anyone to view his web camera that night. And Michelle Huang, a friend of Ravi's from high school who was then attending Cornell University, has testified that Ravi sent her a text message – possibly as a joke – that said he had a computer program that would warn him if someone approached his own bed. “Keeps the gays away,” he told her in one message.
"Digital evidence is a very powerful tool that people need to become aware of," concurs Bradley Shear, a Washington, D.C.-based social media lawyer who writes a blog on the topic. "Just like real DNA, digital DNA follows you forever – and could help put in you in jail."