An Indian-origin student of Rutgers University, who was found guilty of bias intimidation for spying on his gay roommate's sexual encounter, is seeking to have the conviction against him overturned and be granted a new trial in the case.
Lawyers for Dharun Ravi, 20, submitted a 33-page brief in Superior Court in New Brunswick requesting that the judge acquit him entirely or at least grant him a new trial.
The motion also requests that Ravi be allowed to remain free on bail after sentencing, pending the planned appeal.
Attorneys Steven Altman and Philip Nettl said in the motion that Ravi's conviction be overturned as there is evidence that he did not intimidate or invade the privacy of his gay roommate Tyler Clementi, who had committed suicide in September 2010 after finding out Ravi had spied on him using a webcam.
Ravi was found guilty in March on charges of bias intimidation and invasion of privacy and faces up to 10 years in prison and possible deportation to India when he is sentenced on May 21.
The motion filed in court contends that evidence presented at trial showed Ravi was not guilty of invading the privacy or intimidating Clementi.
The attorneys argue that in the bias intimidation counts, which are the more serious of the charges that Ravi faces, the law was misapplied.
"To criminalise a defendant for a victim's mistaken belief about the defendant's motive would turn the bias intimidation statute into a mockery of itself," the lawyers said.
On some of those counts, the jury acquitted Ravi of intending to intimidate Clementi and his partner, but convicted him on grounds Clementi felt intimidated and felt Ravi's actions were purposeful.
"There has been neither any evidence of bias nor of intimidation," the lawyers said.
"A person cannot be intimidated under the statute unless they were the recipient of intimidating behaviour... Here there was none".
"Frankly there is concern that the jury may have found T C's (Tyler Clementi) suicide to be the evidence of intimidation," according to court documents.
"If that is the case, then it raises additional obvious problems and is even greater reason to set aside the verdict".
The motion adds that the judge should also have given a "more forceful limiting instruction" to the jurors about testimony involving Clementi's suicide.
"The instruction should have stated that not only is defendant not charged in the death... but with regard to the bias counts, the suicide is not evidence of T C's intimidation," the documents said.
The lawyers said the jury also got it wrong on invasion of privacy charges because the few seconds Ravi and his friends saw Clementi and other man through the webcam "consistently and unrebuttedly established that defendant did not see any nudity, sexual contact or sexual penetration".
Ravi did not take the stand at his trial but said after the verdict that he was sorry for Clementi and he had not intended to hurt or intimidate him.
"I didn't act out of hate and I wasn't uncomfortable with Tyler being gay," Ravi had said.
During the three-week trial, Altman said Ravi's actions were "stupid" and "immature" but not "hateful" or criminal.
In the motion, the attorneys also noted how Clementi's computer, a note recovered from his dorm room and some police reports were improperly withheld from the defence.
These could have helped "shed light on Clementi's state of mind".
Meanwhile, a public meeting in support of Ravi is scheduled for May 4 in New Jersey's Edison, which has a large Indian-American population.
The 'Support Dharun Ravi Committee' aims to "use legal, democratic and peaceful ways to drum up support so that legislators, politicians and public officials start noticing what's wrong with this law".
The committee feels the punishment should fit the crime and the verdict handed down to Ravi is "improper".
It is demanding that Ravi should have no jail time and not be deported from America.
The committee has also sent a petition to the Obama administration protesting the inappropriate use of the bias law in the case.
The target is to get 25,000 signatures in four weeks for that petition and that 14,000 were collected.
