Push continues against potential Davawn Robinson defense that death came from sex play accident
Testifying for the prosecution in the murder trial of Davawn Robinson, a forensic pathologist from the city medical examiner’s office told a Manhattan jury that the injuries on Edgard Mercado’s body showed he had been in a fight.
“All these injuries are indicative of somebody struggling to get away from a ligature,” said Dr. Rachel A. Lange, the forensic pathologist, during December 8 testimony.
Robinson, 24, who has been alternatively described as gay and bisexual, faces one second-degree murder count in the Mercado homicide. The Manhattan district attorney charges that Robinson intended to kill the 39-year-old Mercado, who was gay, when he strangled him in the older man’s Avenue C apartment in 2009.
The defense is arguing that Robinson never had the legally required intent to convict him of murder.
Questions and comments made during jury selection and while questioning prosecution witnesses suggest the defense will argue Mercado’s death was an accidental strangulation that occurred while the two men were having sex. The defense did not make an opening statement.
Lange’s testimony is a significant problem for the defense. She pointed to bruises behind Mercado’s right ear and above his left eye that were consistent with being punched, struck, or slammed against a hard surface. Abrasions on one cheek were consistent with being dragged against a rough surface, such as the carpet in his bedroom. Bruises on his chin and jaw may have come during a fight.
“Are these consistent with someone struggling against the pressure being exerted on his neck?” asked Leila Kermani, one of two assistant district attorneys on the case. Lange responded, “Yes.”
Mercado’s hyoid bone and thyroid cartilage, two structures in the throat, were fractured. Asked if those fractures would result from more force than that required to simply close off a person’s windpipe or the arteries and veins in their neck, Lange said, “It’s likely.”
Kermani asked, “How long would that continuous and uninterrupted force have to have been?,” to which Lange replied, “At least a few minutes.”
Anticipating a defense that says Mercado’s death was an accident that came during an erotic asphyxiation session, Lange testified that she knew of “rare case reports” of such deaths.
“With a partner involved, when somebody loses consciousness, the partner would be able to release them,” Lange said.
Kermani kept Lange on the stand for roughly two hours, in part, by repeatedly asking the same question in a different form. That repetition tactic, which both sides have used in the trial, is meant to guarantee a jury will not miss a point. Toward the end of the two hours, Annie Costanzo, one of two Legal Aid Society attorneys representing Robinson, began to object.
“We’ve been through this about five times,” Costanzo said at one point. That was followed by additional objections, with Costanzo saying, “Asked and answered.” Even the trial judge, Daniel P. FitzGerald, said, “We’ve covered this.”
Cross-examined by Costanzo, Lange said that when her office calls a death a homicide, it is not a comment on the state of mind of the person who caused the death.
“Those determinations are left to the jury system, right?” Costanzo asked, to which Lange answered, “Right.”
Costanzo also asked about the wide bruises around Mercado’s neck that were from the rope.
“But by looking at those ligature marks, you can’t tell if the deceased wanted the rope on his neck, right?” she asked. “Right,” Lange said.
Costanzo also asked Lange about sexual paraphilias, including sado-masochism.
“Now a sexual masochist is not engaged in pretending to be bound, they actually want to be bound, right?” Costanzo said. Lange said, “Yes.”
Questioned by Costanzo, Lange also said that while deaths by asphyxia during sex were rare, they do occur. Referring to those case reports, Costanzo asked, “Isn’t it fair to say that the safety mechanism of having another person there failed?” That question drew an objection from Kermani, and Lange did not answer.
In other testimony during the week of December 5, the prosecution established that Robinson’s DNA and fingerprints were found in Mercado’s bedroom. They entered the statements he gave to police and prosecutors in which he admitted to killing Mercado, though he said it was in self-defense. Immediately following the killing, Robinson made a 20-minute phone call to 911 in which he confessed and said he acted in self-defense.
When questioning Jeffrey Forde, the investigation’s lead detective from the Ninth Precinct, which covers the East Village, the prosecution also sought to discredit what may be the defense case.
“Did you ask him if he was familiar with the use of ropes during sex in the gay community?” Kermani said. Forde said, “I did ask him that.”
“What was his response?” Kermani continued. Forde said, “He said, ‘No.’”
“Did he appear to be at all embarrassed or uncomfortable about that topic?” Kermani asked, and Forde answered, “No.”
Because Robinson first said he acted in self-defense when he killed Mercado, if the defense opts to now argue that the killing was an accidental strangulation during sex, they will have to explain those earlier statements. One possible argument could be that Robinson was so ashamed of participating in that activity he lied in those statements.
The rope that killed Mercado was a belt the victim used in his study of capoeira, a Brazilian art form that mixes dance and martial arts. Police testified that no sex toys or bondage equipment was found in Mercado’s apartment.
The prosecution rested on December 9. If the defense chooses to put on a case, that will begin on December 12.