Excerpts from the prosecution's summation, delivered by Assistant District Attorney Cheryl Coleman. "Jason McEnaney was not the victim of an unfortunate incident, he was not the victim of an industrial accident, and he was not the victim of an act of God," Coleman told the jurors. "He was a crime victim, he's a victim of an act of violence, he's the victim of an act of terrorism; an act that, despite Ralph Tortorici's mental illness, he's completely, morally and legally responsible for." (Editor's note: These excerpts from the court transcript have been slightly edited.)
... Ladies and gentlemen, the beginning of this trial I think was particularly significant. You heard potential jurors come and go. Remember at the beginning of the trial, when we saw one potential juror who ended up being excused-- I think he was sitting right there-- tell us that in his opinion this trial was a waste of time. And, ladies and gentlemen, for sure if the law, which you will be about to hear in a few minutes from the Judge, only required the defense to prove that Ralph Tortorici was disturbed, that Ralph Tortorici was mentally ill, that Ralph Tortorici was insane, if that was enough for him to be excused for these crimes, our friend over there who was excused from this jury would, indeed, be right and this trial would be a waste of time. And I might as well sit down and the People of the State of New York might as well lie down. But, ladies and gentlemen, I'm not sitting down, and the District Attorney's is not going to lie down in this case, and we're not giving up the fight in this case, because the law which you will hear in a few minutes does not merely require the defense to prove that Ralph Tortorici was merely insane. Rather you will hear Judge Rosen tell you that the law talks about a two-prong test.
And they have to prove to you before Ralph Tortorici can be excused from legal responsibility-- and wait a minute, let's stop a minute-- did I say they must prove to you? I did. Because, ladies and gentlemen, as you will hear-- and I can tell you this is a different kind of one for me because as prosecutors Ms. Preiser and I are used to coming up here and lugging around the burden of proof and fending off reasonable doubts, as we have to do when it comes to proving the elements of the crime in this case. Ladies and gentlemen, as Judge Rosen will tell you, when it comes to the affirmative defense of nonresponsibility-- which is what we're talking about here, nonresponsibility-- it is the burden that the defense must prove by a preponderance of the evidence not only that he's insane-- and by the way, insane, as you might have guessed by now, too, you will find does not have its ordinary common meaning or its medical meaning, that you heard the doctors testify to; but it does in fact have a legal meaning. The legal meaning that you promised you would follow and uphold.
But the law does not merely require them to prove that. The law requires that they prove to you that the defendant because of a mental disease or defect was incapable of knowing or appreciating either the physical nature and potential consequences of his actions, or that he knew society would view his actions as wrong.
The issue is not whether Ralph Tortorici is crazy, insane, whatever you want to call it. The issue is not, as it is understandably for Ralph's Tortorici's family, whether or not he needs treatment or medical attention, as opposed to punishment. The punishment issue is whether Ralph Tortorici's mental illness is so pervasive, so profound, so all consuming that it prevented him from knowing either of those two things that I told you about; the physical nature, consequences of his acts, that his conduct was wrong, legally morally.
Ladies and gentlemen, I would submit to you that the big fallacy in this case that the defense would like you to buy into is that you can categorize the proof in this case in half and that this is like two separate trials. That you can categorize the proof in the two categories as follows: Number one, the factual proof of what happened in the lecture center that day that establishes the elements of the crime. Then separate from that the medical proof of so-called insanity.
Ladies and gentlemen, I'm here to submit to you that nothing could be further from the truth. Because, ladies and gentlemen, the proof-- I submit to you the only credible proof in this case-- of Ralph Tortorici's mental state at the time of the crime-- which is what Judge Rosen will charge you have to focus on, at the time of the crime, not days, weeks, months or a year later-- the only credible proof of that comes from the circumstances of the crime itself. And as fact finders in this case you're fortunate enough and privileged enough to have seen and to meet and to have read back, if you would like, the testimony of the surviving students in this case, those who lived through varying degrees of the ordeal in Lecture Center 5 on December 14th, 1994, from nine in the morning until 11:30. They are the eyewitnesses to Ralph Tortorici's mental state at the time of the crime. They are the experts in this case.
When you think about the time that was spent in this case by the psychologists and psychiatrists-- who we'll talk about in a minute-- that these students were actually with Ralph Tortorici longer than any single psychiatrist or psychologist was. In fact, they were with him longer than a lot of them put together. And rather than being paid one hundred dollars an hour, one hundred and fifty dollars an hour, eight hundred dollars for a half day rather than being paid for rendering an opinion as to the defendant's mental state, these students, Jason, Tom, Rob, Dackri and Mike, told you what they saw and heard. And rather than being paid, they have paid in varying degrees; and none more than Jason. Ladies and gentlemen, from these young people you learned the real truth about Ralph Tortorici's mental state, while simultaneously proving the elements of the crimes-- which we'll talk about at the end-- of kidnapping, reckless endangerment and assault and attempted murder.
There was no talk by Ralph Tortorici in Lecture Center 5 that day of being motivated by wanting to have a chip removed out of his brain or penis, or wherever it was. At different times it's different places. You heard that what Ralph Tortorici was talking about and what Ralph Tortorici demonstrated was control. There was control, there was controlling behavior. There was planning. There was what their own expert, Jay Thalmann, refers to as planful, goal-oriented behavior. The kind of behavior that-- at least when he testifies for the prosecution-- he relies on and points to as key for showing that a mentally ill defendant is responsible.
Ladies and gentlemen, for three hours there was not a word about being motivated by wanting people to get the chip out of his brain or out of his penis. What did he say? What did he talk about? What was his motivation? He was angry at the officials of the University. His demands, until he got going and got carried away with himself later on, all dealt with the University "Bring me the Dean. Bring me the bursar." Who deals with financial aid. "Bring me the registrar." Who deals with grades. The people he wanted brought to him were the officials who he had the beef with. He was angry at not graduating. He was angry at what he perceived being cheated out of his diploma.
Ladies and gentlemen, from what you heard from the registrar here-- at least from Ralph Tortorici's point of view and from what the registrar said-- there was at least some confusion there that Ralph Tortorici might have had a legitimate beef. There was some sort of mix up. And even if not, it was clear that he felt cheated because he was told that he had one more course to go to graduate. He felt cheated out of his degree, felt robbed and cheated. Cheated on by the University, cheated on by his girlfriend. A loss of control. The answer? To fight back, to stop being the victim, to take control, to victimize and to terrorize.
I'm not saying it was a rational thing to do; but, ladies and gentlemen, except for crimes that have to do with money, what crime of violence is a rational crime? What I'm saying is this: Maybe you believe that Ralph Tortorici is busting all of our chops-- and there's certainly testimony in this record to show that he's grandiose and sarcastic enough, when you see the Mid Hudson records, to be that kind of guy-- and maybe you think that simply a case of another person who's flipped out by crack cocaine, and maybe you agree that Ralph Tortorici really believed that at the time of the incident he had a chip in either his brain or his penis or both.
The point is, ladies and gentlemen, with all respect, that legally it doesn't matter, because there's not a shred of credible evidence in this case that Ralph Tortorici was motivated by anything but anger at the University and what he thought, being cheated out of his diploma. The chip, the delusions, as Dr. Thalmann, their expert, explained to you, an individual can function, even a paranoid schizophrenic can function independently with delusions and still be responsible for his actions.
Remember, they must prove to you that Ralph Tortorici was not only mentally ill, but that despite-- but in addition to being mentally ill-- and only due to mental illness and not due to drug inducement-- only due to mental illness did he lose the ability to know or appreciate either the physical nature and potential for harm of his actions, or two, that his actions would be perceived as either legally or morally wrong.
Ladies and gentlemen, the first prong of the test requires that Ralph Tortorici has lost the ability because of mental illness to either know or appreciate the physical nature and consequences of his actions. He has to know the physical nature of his actions; that what he's doing is holding a gun and taking the students hostage In other words, the physical nature of his acts.
So how is this for proof, folks? "I have announcement to make. This is a loaded rifle. I'm holding the class hostage." Do I have to go any further than that? I don't think so.
Consequences of the act. The law talks about his knowledge, the potential harm that could come from his consequences. Let's talk about that a few minutes. Number one, he shows the students bullets. Shows he knows the potential for harm. He talks about the rifle and its capabilities. Shows he knows the potential for harm. Shows them the knife and how sharp it is. Shows he knows the potential for harm. Sticks the knife in a textbook. Shows he knows the potential for harm. Has the students tie the doors shut with this thick, thick hose. Shows he knows the potential for harm. "You're not taking me seriously? I will show you." Bang. Shows he knows the potential for harm.
"You don't give me my demands, I will start shooting students. They know who they are. Don't play hero with me. I know who the tough guys are and I don't want you big guys together." Shows he knows the potential for harm.
"Try to escape and I will shoot you in the back." Shows he knows the potential for harm.
"Get in front of those doors, so I can use you as shields." Shows he knows the potential for harm.
"We're going to be here a long time, I've got enough ammo here to kill a lot of cops." Shows he knows the potential for harm.
Where's the note? "Dear family, distribute my possessions." Shows he knows the potential harm to himself.
So much for the first prong of the nature and consequences, which is their burden of proof. They don't make it.
Do they make the second prong? They must prove to you that Ralph Tortorici [didn't know] his conduct was wrong. And by wrong the law means, as you will hear, is that he can't know that it was either legally or morally wrong. If he does, he can't say he's not responsible. Ladies and gentlemen, as you will hear, when we talk about wrong and knowledge of wrongness, we're not talking about-- I was a little hesitant to give you this example because it's a little lacking in taste, but after what you heard in this trial it's really nothing. Do you remember that commercial? I think it was for some popular laxative, where they said "normal is normal for you." Well, in this case-- and you will hear the law on wrongness-- knowledge of wrongfulness, what we're talking about is knowledge of not what's wrong for him, but knowledge of what society would perceive is wrong, what an ordinary person would perceive is wrong. The judge will tell you the defendant cannot escape criminal responsibility by imposing his own personal standard of rightness and wrongness.
Ladies and gentlemen, first of all, I think there's a lot of proof in this record to show that Ralph Tortorici himself knew that his act was wrong, even for him. But they must show you, as I said, that he didn't know what others would think.
Where's their proof? Where is there proof? Ladies and gentlemen, even though we don't have to prove to you that he did know under the second prong of the test-- which I like to call the wrong prong-- there's a lot of proof to show that Ralph Tortorici did know that others would perceive his act as legally or morally wrong. Let's go through them.
Number one, he hides the gun in his coat all the way-- and you heard Dackri Simpson tell you-- all the way from-- SUNY Albany is a big campus-- all the way from the Colonial Quad parking lot across the outside of the campus, onto the academic podium, as he told you, downstairs to the lecture center, all the while with the gun in his coat, hiding the gun, secreting the gun. Shows that he knows the conduct is wrong. He continues to secrete the gun as he walks into the lecture center. Shows he knows that the conduct is wrong. "Tie those doors, so the cops don't come in." Shows he knows that his conduct was perceived as wrong.
"I'm going to let you two crying girls go." Shows he knows that his act is morally wrong. "I got a soft spot for girls. Go ahead." Morally wrong, shows he knows that.
"I've got enough ammo to kill a lot of cops." Shows he knows that the cops are coming, shows he knows that his act is legally wrong. Calls over Investigator Guiry in the emergency room and says, "You know, I didn't mean to shoot anybody." Shows he knows that his act is legally and morally wrong. Emergency room records say he's sorry that anybody got hurt. And that's right after the time of the incident. Shows he knows that his act is legally or morally wrong.
Ladies and gentlemen, the fact that he doesn't start talking about his motivation being getting the chip out of his brain or penis until after he's arrested shows, I would submit to you, that he knows he needs a sympathetic reason to explain his conduct and, therefore, shows that he knows his act was legally wrong.
Ladies and gentlemen, you heard some rather disturbing kind of graphic gross testimony from Investigator Guiry about how Ralph Tortorici had defecated in his pants after-- at the risk of sounding gross-- I would suggest to you, since there's no evidence that he had any ordinary problem with his bowels or whatever, I would suggest that he shows to you that he was scared. And if he knew enough to be scared, it shows you that you knew his act was either legally or morally wrong.
The note to the family. "I hope I don't bring you more grief." Ladies and gentlemen, remember where there's two interpretations that can be given to an act, remember who has the burden of proof, please. "I hope I don't bring you more grief," shows that he knows, I submit to you, that his family would suffer stigma and that his act would be perceived by others as morally wrong. And, again, the fact that he mentions the experiment in the note, "Dear family, please understand my actions are necessary to try to stop this experimenting," shows again-- and you're talking about the mind here, admittedly a bit disturbed, but a very smart psychology major senior. Think about what the target audience is for this note. It's his family. All right? And his family that he knows is already sympathetic to the idea of his mental illness. He knows that he needs to give them comfort, to give them peace, a sympathetic reason for his conduct, so they will sympathize and feel sorry for him. Because saying, "Dear family, I'm really mad at the University and my girlfriend and I'm going to go take hostages and kill people" isn't going to make it; it's not particularly sympathetic. It shows that he knows that his conduct is morally wrong.
He has to give an excuse. Why give an excuse, if you didn't know your act was wrong? Why offer apologies? Why offer up excuses? Why offer up reasons, if you are convinced that you're so right? You don't need to offer up apologies for being right unless you perceive that other people would perceive what you did is wrong. Just the fact, I would submit to you, that he feels the need to apologize for and explain his conduct shows that he knows that his conduct is morally wrong.
Finally, ladies and gentlemen, last and best-- and I have to tell you I like this one best because it comes from the guy who they paid thousands of dollars to meet their burden of proof of showing that the defendant is not responsible, and he ends up, I would submit to you, showing that he is-- and that's Dr. Klopott. There were two quotes that Ralph Tortorici said to Dr. Klopott. And I would submit to you that either one shows that Ralph Tortorici knew that society, or others, would see his act as wrong. The first quote was this: "Holding hostages is wrong, but when you're a freedom fighter, it's not necessarily wrong." What does that show? It shows you that he knows the difference between what's wrong for him and what society would see as wrong, and that others would perceive it as wrong. It's also important that he uses the phrase, I would submit to you, "not necessarily wrong." What does that mean? You know, not really wrong? Just kind of sort of wrong? It shows that he appreciates the wrongfulness of his conduct.
Second quote: "It was wrong, but under the conditions justifiable, especially if the result would lead to a greater good." Again, showing you that he knows the difference between societal values and his own personal agenda. Shows that he knows his conduct is wrong.
Ladies and gentlemen, I know they don't like this, but it's true, it's true, it's true. It is an example, plain and simple, of a terrorist mentality: "the end justifies the means, you can't make a omelet without breaking eggs," and all those things. Ladies and gentlemen, plain and simple, terrorists-- no matter what their act is, and I don't have to bring up those examples-- terrorists are responsible for their actions. And I would submit to you if you believe any of the above examples that I just gave you, any of them, I submit under the law you cannot find Ralph Tortorici did not appreciate the wrongfulness of his actions. They cannot satisfy the wrong prong of the mental disease or defect not responsibility test. ...
Do you think it's a coincidence that Ralph Tortorici, who was obsessed with his own penis and his own sexuality ends up shooting Jason in the groin, depriving him of the normal functioning of his own sexual parts? But, ladies and gentlemen, Jason McEnaney, despite what Ralph Tortorici took from him, is more of a man than Ralph Tortorici will ever be. He sat up here and he told you through unbearable pain what happened to him. And there's a lot of guys that just couldn't do that. But Jason did. And he did it with guts, he did it with dignity. And he did it with courage. And contrast that, please, to Ralph Tortorici. He's a coward, he's a terrorist. All terrorists are cowards.
Ladies and gentlemen, a hundred surgeries on his penis wouldn't make him a man. He won't take responsibility for his actions because the plea bargain wasn't good enough for him. He was going to take responsibility for his action, if you drop those attempted murder counts on the police and if the numbers were right. He was ready to, he was going to; but the plea bargain wasn't good enough. He won't take responsibility. Ladies and gentlemen, I submit you will have to do that for him.
You swore as jurors that you could abide by the law, by the burden of proof and by the definition of nonresponsibility as it exists in the law. You swore that you would not let common conceptions of insanity or medical definitions of insanity be good enough for you, because it's not under the law. You swore it would not be good enough for you unless it met the legal criteria, which you swore to uphold; the legal criteria of nonresponsibility. And out of all the words that they used in their summation, ladies and gentlemen, nonresponsibility was not a word you will notice that they ever used. He kept referring to it as insanity. And there's a good reason for that. But what we're talking here is not responsibility.
Ladies and gentlemen, Jason McEnaney was not the victim of an unfortunate incident, he was not the victim of an industrial accident, and he was not the victim of an act of God. He was a crime victim, he's a victim of an act of violence, he's the victim of an act of terrorism; an act that, despite Ralph Tortorici's mental illness, he's completely, morally and legally responsible for.
Ladies and gentlemen, on behalf of the People of the State of New York, Cindy Preiser, myself and the McEnaney family, I thank you for your commitment to this case and wish you courage in resolving your deliberations. Thank you.
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