 "Photo: Tim Kacmar")
SOUTH BEND - A jury of seven men and five women convicted former Notre Dame safety Abram Elam of sexual battery Saturday, but acquitted him of the two more serious felonies, conspiracy to commit rape and criminal deviate conduct, following over nine hours of jury deliberation.
Judge Roland Chamblee scheduled a sentencing hearing for Oct. 7 after Elam completes a required interview with the probation department.
Mark Lenyo, Elam's attorney, said he was disappointed on the conviction for sexual battery but happy with the overall ruling.
"We are pleased the jury found Mr. Elam not guilty on the two more serious charges. It indicates the jury didn't believe everything the accuser had stated that [occurred] that evening," said Mark Lenyo, Elam's attorney.
Elam was charged following a March 28, 2002 incident at teammate Justin Smith's off-campus house that also involved former players Lorenzo Crawford and Donald Dykes. All three will go on trial later this year; Dykes' trial is the next to begin, on Sept. 8.
Special prosecutor Maureen Devlin said that while she was disappointed Elam was not convicted on all counts, the jury's conviction of him vindicated the accuser and proved her story.
"We think the evidence did show he was guilty of [all of the] counts, but we had 12 people from the community who heard the evidence, listened to it very carefully, deliberated for a long time, and we got I think the right verdict based on that," Devlin said.
Devlin, who will also be prosecuting the cases of the other accused former players, declined to comment on how this ruling would effect those trials.
Following the jury's verdict, Lenyo said he was uncertain whether he would ask Chamblee to reduce the Class-D felony sexual battery charge to a Class-A misdemeanor.
If the judge sentences Elam under the felony charge, he could receive a jail term of up to three years and a fine of up to $10,000. Should the charge be reduced to a misdemeanor, the maximum sentence is one year in prison or a $5,000 fine.
The jury heard over 60 hours of testimony during the trial, in which attorneys each depicted the essential events of the night as being either gang rape or consensual group sex.
The prosecution's case against Elam was largely based on the victim's testimony, the testimony from the case's lead investigator and testimony from the three other former football players charged in the incident, who were granted immunity for this case. The prosecution attempted to show that the victim did not consent to the sexual activity and was overpowered by the football players and saw that it would have been fruitless to fight back against them or seek help.
The prosecutor said that the victim told Elam no, but he kept returning to the room where the rape was occurring.
"He's right there in the middle of it and he comes back and comes back," Devlin said.
She said that even though the victim danced seductively with Justin Smith at the State Theatre before the incident occurred, that did not give him permission to have sex with her.
"She can dance with [Smith] as close as she wants, but the minute he lays a hand on her, no means no," Devlin said.
Devlin also minimized the fact that the victim did not immediately seek help after the rape was finished.
"What is she supposed to do? Where is the manual for what a rape victim is supposed to do? Why do we think we know what a person is supposed to do," Devlin said.
The defense stated that the sexual acts were consensual.
"You have heard countless personal, embarrassing details. The conduct is regretful from all people participating in it ... while shocking, the conduct was consensual, not illegal conduct," Lenyo said.
The defense also pointed out inconsistencies between the victim's story and the way a rape victim might be expected to act - the fact that she voluntarily went to Smith's bedroom to set an alarm clock, that she spent the night at her attacker's house, sleeping in the same bed as him, that she removed her tampon prior to the incident and that she did not shower until the following day.
The defense also provided testimony from two people who were in the house during the incident and did not hear any screaming or unusual noises, although one of the witnesses was intoxicated that night.
Lenyo said that the police investigation was flawed because of inexperienced investigators and it neglected to explore pertinent information, only speaking to Smith's roommate, who was in the house at the time of the incident, for five minutes on the telephone.
He also provided reasons why the victim might want to fabricate the fact that she had been raped, such as morning-after regret and concern for her reputation at Notre Dame.
The defense attempted to point out inconsistencies in reports the victim made to various officials. However, the prosecution said these inconsistent reports did not necessarily represent an inconsistency in the victim's story and that the jury should believe her initial testimony.
"You must consider whether what you heard was a true inconsistent account by [the victim] ... you had a chance to hear her," Devlin said.
The prosecutor concluded her argument by saying that Elam had lost his status as a football player and should be convicted of the crime he committed.
"She said no and Abram Elam should feel sorry. What he did was illegal and immoral," she said. "It doesn't matter anymore that you are a Notre Dame football player," she added, looking at Elam.
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