By Jake Palmateer
COOPERSTOWN _ Justin Gillingham walked into the Otsego County Courthouse on Tuesday as a county jail inmate potentially facing state prison. He walked out a free man.
A jury acquitted Gillingham of rape and attempted murder but found him guilty of misdemeanor assault related to an attack on a State University College at Oneonta senior last May.
Following the verdict on the seventh day of Gillingham's trial, state Supreme Court Judge Michael Coccoma ordered the 24-year-old Oneonta man be released from jail on his own recognizance. Gillingham served nearly a year _ the maximum sentence for third-degree assault.
Gillingham's father, Richard Gillingham of Cohoes, attended several days of the trial last week and was in court Tuesday. His father's girlfriend, Lori Kilduff, and her daughter Katie Kilduff joined him.
The three smiled widely as the verdict was read and it became clear Gillingham would soon be released.
"I hope he learned a valuable lesson. I'm very sorry about the lady who got assaulted," Richard Gillingham said. "We're going to have a talk."
As part of his provisions for release prior to sentencing, Coccoma ordered Gillingham not to possess any firearms.
Gillingham, who appeared relieved but otherwise unemotional during and after the reading of the verdict, asked Coccoma if that included a firearm for use during turkey-hunting season, which starts May 1. Coccoma said it did.
First-degree rape and second-degree attempted murder are class B violent felonies punishable upon conviction by up to 25 years in state prison.
Coccoma set May 22 as the date postjudgment motions would be heard. No sentencing date was set.
Coccoma also ordered the Otsego County Probation Department to conduct a presentencing report for Gillingham and re-instated an order of protection on behalf of the alleged victim, who no longer lives in the Oneonta area.
Neither the alleged victim, nor any member of her family, was in the courtroom. The Daily Star has a policy of not identifying the victims or alleged victims of rape.
Lori Kilduff said Justin Gillingham is a good kid who made a mistake when he assaulted the woman.
"We knew in our hearts he was not guilty of rape and attempted murder," Kilduff said. "He was not capable of that."
Katie Kilduff said they do not harbor any ill will towards police or the prosecution.
"I think they did what they thought was right," she said.
Justin Gillingham told Coccoma he would be living on River Street and was hoping to resume work as a floor installer.
The night in question
Gillingham, represented by Otsego County Public Defender Richard "Otto" Rothermel, was accused of raping a 23-year-old SUNY Oneonta student at about 2:40 a.m. May 16 on a dark path between campus and Clinton Street. He and the student both testified that they met each other on the street after leaving separate bars downtown and agreed to smoke marijuana and hang out at Gillingham's Cozy Avenue apartment.
Gillingham later accompanied the woman in her car as she drove back to campus from his apartment in order to ensure she got home safely. She was showing him how to return on foot when the assault occurred, according to both testimonies.
The woman testified Tuesday that Gillingham suddenly dragged her down the path, assaulted her, raped her and tried to kill her by attempting to snap her neck three times. Gillingham admitted an assault occurred, but said the woman first bit his tongue while they were "making out" on the path, fully clothed. He said he punched her four or five times and fled.
Several witnesses said they saw the woman in the aftermath of the assault naked from the waist down, bloody and acting hysterical, screaming she had been raped.
The woman testified that she knew Gillingham's first name and was able to point out his house to police later that morning. Gillingham, who testified he went to work that morning at 7 a.m. and learned that police were looking for him, turned himself in at the Oneonta Public Safety Building.
Rothermel said Gillingham initially tried to outsmart the police by making up a story he had been assaulted by the women and four men. He was charged that night with first-degree rape. He was indicted about a month later on the rape charge, as well as second-degree attempted murder and second-degree assault.
Gillingham had been held at the Otsego County jail on $250,000 bail since his arrest.
Closing arguments and DNA evidence
During his closing argument Monday, Rothermel went witness-by-witness to explain what he said was the evidence exonerating his client, as well as the inconsistencies in the testimony of the alleged victim and the mistakes of the police investigation.
Muehl said during his closing argument that Rothermel's case was focused on minor inconsistencies in evidence and witness testimony, and said the woman's version of events is more consistent over time than Gillingham's.
Muehl said the defense's suggestion the alleged rape and attempted murder were somehow staged by the woman defies common sense.
A state police forensic scientist testified there was no DNA evidence linking Justin Gillingham to any penetration of the woman's vagina. DNA evidence did indicate the woman's blood and the blood of Gillingham were found on a sweatshirt discovered by police hidden in a window frame at Gillingham's apartment the day after the assault.
Muehl had asked potential jurors during jury selection if they would be willing to convict someone of a crime if there was no DNA evidence.
The nurse who examined the woman at A.O. Fox Memorial Hospital also testified she did not see any bruising, tearing or redness in the woman's genital area.
Jury deliberation
It took about nearly five hours of deliberation over two days for the jury of seven men and five women to render its verdict. The trial began last Monday with jury selection.
At about 11 a.m. Tuesday, the jury asked Coccoma to re-read the definitions of the charges.
In his instructions, Coccoma explained to the jury it could consider a misdemeanor charge of third-degree assault if there was no finding of guilt on the first-degree rape or second-degree attempted murder charge.
A conviction of second-degree assault, a more serious felony charge, would have to be predicated on whether the separate felonies of first-degree rape and/or second-degree attempted murder were committed during the alleged assault, Coccoma said.
About 20 minutes later, the jurors returned their verdict.
Otsego County District Attorney John Muehl left the courtroom soon after court was adjourned.
"I've got no comment on this," Muehl said.
Local official urges awareness
Dan Maskin, executive director of Opportunities for Otsego, said staff from OFO's Violence Intervention Program attended the trial.
"Given what I know about some of the evidence that was presented, the outcome was disappointing," Maskin said.
When asked if the victim was working with the program's victim advocates, Maskin said he could not disclose that information.
Maskin said one of the things he has learned from the trial is that the Violence Intervention Program still has a lot of work to do in terms of talking about attitudes surrounding sexual assault and violence.
"I think, as a society, we have a lot of work to do as well," Maskin said.
Maskin said he anticipates the trial and its outcome to be on the minds of those participating in the Take Back the Night march on Thursday sponsored by the Violence Intervention Program.
Take Back the Night begins at 7 p.m. at the Milne Library at SUNY Oneonta and proceeds through the Hartwick College campus before ending on Main Street. The event is designed to raise awareness of sexual and domestic violence.
"Obviously, it's very difficult for a victim of a violent crime," Maskin said. "A) They get victimized at the time of the incident. B) They get re-victimized from the process of going through the trial."
