The man who has accused former state Senate candidate Eric Bodenweiser of sexually abusing him 25 years ago failed to show up in court for his third day of cross-examination.
No reason was given for why the victim did not appear June 5. Delaware Superior Court Judge E. Scott Bradley dismissed the jury without commenting on the accuser's absence. Whispers around the courtroom were that the victim went to the hospital; Bodenweiser defense attorney Eric Mooney said he did not know where he was.
Bodenweiser is facing 14 charges of first-degree unlawful sexual intercourse and 14 charges of second-degree unlawful sexual contact for incidents police say took place 25 years ago. He faces a mandatory 15-year sentence on each of the unlawful sexual intercourse charges.
Day 5 of testimony in the case also saw Bodenweiser's attorneys request a voir dire hearing, on grounds Bodenweiser's accuser was coached on how to behave on the witness stand.
Arguing that because witnesses must be sequestered and not communicate with anyone about their testimony, Bodenweiser's attorneys, Mooney and Joe Hurley, want to know to whom the victim has spoken from the time his testimony began June 3 to when he took the stand June 4.
Communicating with anyone as to how to behave on the stand is a violation of the sequestration order and could compromise Bodenweiser's right to a fair trial, Hurley said in the hearing request.
The alleged victim, "illustrated a courtroom demeanor that counsel, in his experience as a courtroom litigant, has only seen when witnesses who have specifically been trained have offered," Hurley said. Such behavior, he said, is consistent with police, medical professionals and others who regularly give court testimony, but not a layperson such as the victim.
Mooney said the hearing will not likely be conducted in open court, and there's no telling whether the results will be made public.
In his hearing request, Hurley said on his first day of testimony, June 3, Bodenweiser's accuser displayed traits and body language common to laypeople with no experience on the witness stand: he engaged in Hurley's questions, waited for the questions to finish before answering and focused his attention on Hurley when answering.
On his second day on the stand, the victim's demeanor changed, Hurley said: his body posture changed, and he abandoned attempts to explain inconsistencies in his story by answering "I don't recall," I don't remember," or "I don't have an explanation," Hurley's request states.
During testimony June 4, Hurley asked the victim if he had been coached, pointing out changes to his posture and the way he answered questions. At one point, in trying to explain discrepancies in his timeline, the victim turned to the jury and said he had tried to forget the abuse he says he suffered from Bodenweiser.
Hurley's request says, "It was in the manner of a teacher explaining a concept to students."
The request specifically mentioned the victim's wife, who the defense says has a background in the entertainment business, as someone who may have coached him on his courtroom demeanor.
Tense exchanges mark testimony
The victim had already engaged in two days of sparring with Hurley, whose questions and sarcastic tone clearly got under the victim’s skin.
While the victim’s story has been largely consistent, details varied in interviews with Delaware State Police Detective John King, prosecutors John Donahue and David Hume and on the witness stand. Hurley has seized on the inconsistencies to discredit the accuser as a witness.
Hurley recounted the victim's testimony of the first encounter between the victim and Bodenweiser, which started with viewing a pornographic movie and then escalated.
Hurley questioned how many times Bodenweiser showed the victim pornographic movies before the first sexual encounter, which varied in the victim’s statements to prosecutors and King.
The victim told Hurley what he was trying to say was that a pornographic movie was playing when the first encounter took place. He said the variations in his story arose because he had tried to forget about the abuse he suffered 25 years ago, and that it was only recently that he started to remember things.
In his interview with King and later on the witness stand, the victim said he had stayed away from the Bodenweiser home and told Bodenweiser he was uncomfortable with what had happened. The victim said Bodenweiser told him when he got older he would respect what Bodenweiser taught him.
Speaking of the second incident, the victim testified he went back to Bodenweiser’s home but he did not know exactly why he went back. The victim said Bodenweiser answered the door wearing gym shorts saying he had a new toy to show the victim, who was about 11 at the time.
The victim, now 37, said Bodenweiser took him to a back bedroom. Hurley asked him why he went back there nearly a week after Bodenweiser had allegedly forced the boy to perform oral sex.
The victim said he was curious.
When they got to the bedroom, Bodenweiser showed off his new tanning bed, the victim said. Hurley asked if his curiosity outweighed his fear of being sexually abused again. The victim said he did not think it would happen again.
“I looked up to him,” the victim said.
Hurley shot back that the victim looked up at Bodenweiser while he was being abused.
“That’s a smart ass thing to say,” the victim said, his voice rising.
From there, Delaware Superior Court Judge E. Scott Bradley stopped the testimony, asked the victim to step down, dismissed the jury and took a break. The victim stormed off, muttering to himself. Later, Bradley would tell the jury to disregard the exchange.
On June 4, Hurley attacked the victim’s claim that Bodenweiser had threatened his mother’s job at Bodie’s Dairy Market if he talked. Hurley displayed payroll information indicating that the victim’s mother worked at Bodie’s for only nine days. The victim varied in his accounts of how long she worked there; he’s said she worked there for a month and that she worked there for a year. In his June 4 testimony, he maintained she worked at Bodie’s for a year.
Hurley said if the alleged incidents with Bodenweiser occurred after his mother stopped working for Bodie’s, what did the victim have to fear? The victim said despite her not working there, he was still fearful of Bodenweiser.
Hurley also picked on how many times the victim claimed to be molested. On the stand, the victim said 10 times, but Hurley said he told Donahue and Hume it was more than 50 times. The victim said he could not explain the discrepancy in the story.
On direct examination from Donahue June 2, the victim, now 37 years old and living in Florida, said his mother was his best friend; she worked for Bodie’s, a convenience store chain run by Bodenweiser’s family. The victim said his father was a Vietnam veteran and an alcoholic who was physically abusive to his mother and mentally and verbally abusive to him.
The victim, who now has a shaved head and a beard, said Bodenweiser lived across the street with his wife and young daughter. He said he would help give heartworm medication to Bodenweiser’s black labs. In late 1986 or early 1987, the victim said, Bodenweiser’s wife left him, but he continued to go to Bodenweiser’s house to take care of the dogs and to help Bodenweiser work on his race car.
“He was pretty cool to a 9-year-old kid,” the victim said.
Pastor testifies Bodenweiser confessed
The trial started May 30, when Duane Smith, senior pastor at Sussex County Bible Church, testified Bodenweiser confessed to having oral sex with a boy 25 years ago.
“I did it,” Smith said Bodenweiser told him. “There’s some there, there.”
Smith said he met Bodenweiser at the church Oct. 5, 2012, after the victim had contacted radio host Dan Gaffney. Smith said Bodenweiser told him he’d had oral sex with the victim on three or four occasions.
Under cross-examination, Smith admitted to not taking notes of the meeting and his written recollection of events was completed on Nov. 20.