Lawyers for a former US banker accused of raping an Irish J-1 student at a popular New York resort have failed in their bid to use the refusal of her brother to testify in the case to help his defence.
Judge Barbara Kahn, who is hearing the juryless trial, denied a request by attorney Andrew Lankler, for former Goldman Sachs banker Jason Lee (38), to bring a missing witness charge over the brother's decision to remain in Ireland citing his college studies.
A missing witness charge permits the judge to draw a negative conclusion from the fact that the witness is not testifying at trial.
Prosecutors allege that Mr Lee raped the then 20-year-old student, who was in the US working for a summer, at a party in his rented summer house in East Hampton in the early hours of August 20th, 2013 after they along with her and friends met at a nearby nightclub.
Mr Lee denies charges of first-degree rape, sexual misconduct and third-degree, claiming they had consensual sex.
Her brother, who was working in a Long Island resort that summer, was in the house at the time of the alleged rape. The judge previously heard a recording of a phone call that morning in which the brother told police about his concerns about an incident involving his sister.
Mr Lankler questioned the brother's reasons for not testifying being linked to his studies , noting that his Facebook page said he would attend a student race day event at Limerick Racecourse on April 16th.
Mr Lee’s lawyer said he was a “little concerned” about another entry on the brother’s social media page relating to a so-called 4/20 event, which traditionally celebrates marijuana consumption on April 20th.
Prosecutor Kerriann Kelly said the man didn't attend either event but was studying in his college library on both dates. The prosecution always intended to have him testify but he repeatedly refused, citing his studies and the offer of a job starting in London next month, she said.
Judge Kahn also refused another application for a missing witness charge, this time made by the prosecution against a private investigator named Hal Sherman who delivered items that were missing from the alleged crime scene to the local district attorney seven months later.
The trial continues next Tuesday with closing arguments.
