MIDDLESEX COUNTY PROSECUTOR'S OFFICE

Bruce J. Kaplan County Prosecutor

Julia L. McClure Is Assistant Prosecutor Deputy P Assistants Nicholas F. Sewitch Christopher L. C. Kuberiet Christie L. Bevacqua Keith M, Warburton

25 Kirkpatrick Street, 3rd Floor New Brunswick, NJ 08901

732-745-3300 prosecutor@co.middlesex.nj.us Robert J. Travisano Chief of County Investigators Gerard P. McAleer
D r m f

Mav 10 2012 -1 '

Hon. Glenn Berman, J.S.C. Middlesex County Courthouse Courtroom 302 New Brunswick, NJ 08901 RE: State v. Dharun Ravi Prosecutor File No. 10002681 Indictment No. 11-04-00596 Sentencing Memorandum on Behalf of the State

Dear Judge Berman: This sentencing memorandum, submitted on behalf of the State and victims Tyler Clementi and M.B., will begin with an outline of the procedural history of State v. Dharun Ravi because the State believes that it is important for this Court to review that procedural history so certain issues and arguments made by defendant have the proper perspective. After the filing of complaints against defendant Dharun Ravi in September 2010 and prior to setting a date for presentation to a grand jury, pre-indictment discovery was provided by the State to defendant along with an outline of proposed charges to be presented to the grand jury. Thereafter, the State cancelled the first scheduled grand jury date in order to allow defendant additional time to review the materials provided. Defendant declined to consider any pre-indictment plea and the matter was presented to a Middlesex County grand jury. That grand jury returned the 15-count Indictment referenced above on April 20, 2011. Thereafter, an initial plea offer was tendered to defendant and a complete discovery package was provided to defendant. This discovery totaled close to 1,600 pages and included over 85 items of digital discovery. Motions were filed by both sides and heard by this Court. Defendant then sought leave to appeal this Court's decisions on two occasions from the Appellate Division and both requests were denied. Despite successful determinations for the State on a majority of the pre-trial motions, the following revised plea offer was made to the defendant by letter dated November 28, 2011 :
Plead guilty to Counts 1, 7, 8, 9, 13, 15; State will recommend that all counts be sentenced to concurrent terms and agrees to recommend that Count 8 be sentenced one

degree lower, in the third degree range. All other counts to be dismissed at the time of sentencing. (Same as original plea offer) Consistent with N.J.S.A. 2C:44-l(d), the Court has the authority to find t h a t a period of incarceration on Count 8 is not required. If the Court does not make such a finding at sentencing the defendant can withdraw his plea of guilty. Further, the State would not appeal a finding of non-incarceration by the Court. Assuming such a finding is made by the Court, the State would be asking for the following conditions of the probationary sentence imposed: 600 hours of community service, counseling associated with cyber-bullying and alternative lifestyles, defendant's agreement to dispose of any and all information concerning victim M.B. that was provided by the State and/or independently discovered by defendant or defense counsel or the defense investigator. The State would cooperate with and assist defendant in avoiding any possible immigration/deportation consequences as a result of his conviction on the above counts.

There was speculation that the State tendered this plea offer because of weaknesses in the State's case. However, the reason the State tendered that plea offer was because defendant had made no counter-offer to the original plea offer and, knowing the potential for a second degree conviction which would require imprisonment, the State was willing to offer defendant a clear-cut avenue to avoid that prospect. After consultation with the family of Tyler Clementi and with M.B., it was agreed that the State would make the revised plea offer (set forth above) that allowed defendant to avoid jail time and also assisted defendant with avoiding possible immigration consequences in exchange for a plea of guilty to some of the charges in the Indictment. Again, defendant rejected the State's plea offer and made no counter-offer. In fact, through his attorney defendant declared that he was innocent of all charges in the Indictment and was requesting a jury trial on the charges in the Indictment, as was his right. A Pretrial Memorandum was executed by defendant and the State on December 9, 2011, establishing a February 21, 2012 trial date. Defendant Dharun Ravi was represented by experienced defense counsel during preindictment discussions with the State and, of course, in all matters before this court up to and including the trial. Defendant also retained the services of a computer expert who came to the Middlesex County Prosecutor's Office and examined and tested defendant's computer along with defense counsel and defendant himself. Defendant's counsel also worked with a private investigator who interviewed many of the witnesses in the case before they testified. Defendant had an absolute right to a trial by jury and he exercised that right. Defendant had the assistance of another attorney who served as a jury consultant during selection of the jury. Defendant requested that an extensive 16-page questionnaire containing 46 questions be given to all prospective jurors to assist in evaluating each individual potential juror. The Court granted that request. Defendant had 10 challenges to exercise during jury selection to excuse individuals he did not want to sit on the jury, with no requirement to explain why he exercised a challenge. Defendant expressed satisfaction with the jury before all those challenges were used. Once the trial began, defendant had the right to confront the witnesses against him, question those witnesses and the evidence itself. Defense counsel vigorously exercised that right on defendant's behalf through intense, lengthy, challenging and pointed cross-examination. Defendant

had a right to call witnesses oh his own behalf and he exercised that right. Defendant had the right to remain silent at trial and he exercised that right. The twelve jurors who became the final deliberating jury, from the original jury of fifteen citizens who defendant agreed were acceptable to him as jurors on his case, were in a unique situation at the end of the case - a situation that distinguishes them from any other participant in this trial, including the court. The unique situation was this - only those jurors went behind closed doors and deliberated together, after reviewing the testimony and the evidence presented by both the State and defendant; only those jurors then applied the facts that they found to be credible and relevant to the law as charged by the Court; only those jurors talked to each other, expressed views and opinions and heard and considered the views and opinions of other jurors before they made a decision on any count of the Indictment. Those jurors performed their duties over approximately 12 hours, covering three days, before arriving at a final verdict, not just on the fifteen counts in the Indictment, but on each and every one of the 35 questions on the verdict sheet. Those jurors represented a distinctive cross-section of the community: they ranged in age from 20 to 74, were almost evenly split on gender lines, represented diverse racial and ethnic groups and came from varied educational, professional and social backgrounds. Most noted in their questionnaires that they had either no prior knowledge of the case or very limited prior knowledge of the case. Those jurors heard all the evidence presented through testimony from the witness stand, they saw evidence in the form of documents and records both in the courtroom and then through examination again in the jury room. They heard the charge on the law as to each criminal offense charged in the Indictment. Those twelve jurors then went into the jury room and deliberated as a whole - applying the facts that they found to be credible to the law given to them by this Court - and did so in consultation with each other. After doing that, and giving defendant the presumption of innocence throughout the trial and during deliberations, they returned unanimous verdicts of guilty on each and every count in the Indictment. Even this Court, the attorneys for the State, the attorneys for the defendant and the defendant himself cannot make the claim those twelve jurors can. The criminal justice system and the jury system worked as the law intended. Motions were filed and heard before trial. Defendant had a public trial before a jury he helped to select. The jury heard testimony from witnesses presented by the State and defendant and considered and reviewed other evidence, again presented by both sides. It is now time for the next "chapter" in these proceedings and that chapter is titled "Sentencing". Defendant stands before this Court convicted on all 15 counts in the above-captioned Indictment. The State maintains the position it put forth throughout the trial in this matter: defendant committed multiple criminal acts on diverse dates and those acts encompass multiple criminal states of mind and criminal purposes. Defendant has failed to accept any degree of responsibility for the numerous criminal acts he committed, and shows no remorse for same, despite significant evidence pointing directly at him. It is in this context which the Court must consider the appropriate punishment for defendant. The opinions of individuals in the local, national and global community, members of the local and national media, purported scholars and academics in the legal community that defendant seeks to submit for consideration by this Court must be disregarded as outside the extensive record
3

established in this case. Those opinions are largely, if not entirely, uninformed and discredit the intelligence and commitment of the citizens who were selected to serve on the jury panel in State v. Dharun Ravi and the verdicts they rendered, as well as discredit this Court and its findings rendered both in pre-trial motions and during the trial itself. The trial jury has spoken and now the Court, using its wisdom and experience in evaluating and following the sentencing statutes and relevant case law on same, must decide the appropriate legally-mandated punishment for each and every one of the fifteen counts in the Indictment.

LEGAL ARGUMENT N.J.S.A. 2C:44-l(d) Presumption of imprisonment Defendant Dharun Ravi was convicted of three (3) second degree criminal charges in this Indictment: Count 4, Bias Intimidation on September 19th, 2010; Count 8, Bias Intimidation, on September 21, 2010; and Count 12, Hindering, in violation of N.J.S.A. 2C:29-3b(3). on September 23rd, 2010. N.J.S.A. 2C: 44-l(d) provides that the Court shall deal with a person who has been convicted of a crime of the second degree "by imposing a sentence of imprisonment, unless having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others." Concerning, the grading of the criminal statutes and the Legislature's intent to focus on the degree of the crime rather than characteristics personal to the defendant, the Supreme Court in State v. Hodge. 95 NJ. 369, 376-377 (1984), noted that the premise of that legislative process - "the fundamental sentencing guideline that the punishment fit the crime, not the criminal - must be respected." Further, the Court went on to hold that the "in or out" decision, i.e., the presumption of imprisonment, must necessarily have a higher standard than the downgrade provision of N.J.S.A. 2C:44-1(f)(2), otherwise the import of that decision would not be properly and appropriately respected. In State v. Evers. 175 NJ. 355, 388-389 (2003), the New Jersey Supreme Court held that overcoming the presumption of incarceration is not a mere finding by the sentencing court that mitigating factors substantially outweigh aggravating factors and the interests of justice support downgrading the offense under N.J.S.A. 2C:44-l(f) (2), but "is distinct" from that finding and the reasons "must be even more compelling". The Supreme Court went on to note that in 2003, the year Evers was decided, only one case had been decided which upheld the "serious injustice" standard as overcoming the presumption of imprisonment. In that case, State v. Jarbath. 114 N.J. 394, 408 (1989), the Supreme Court noted that it would be a "rare case where imprisonment for serious crimes will not further the goals of general deterrence" and "....where the character and condition of the defendant are so idiosyncratic that incarceration...for the purposes of general deterrence is not warranted." The defendant in Jarbath was found to have a deficient mental and emotional condition such that a medical doctor indicated that she needed a special rehabilitation program and a managed environment. The Evers court, referring to the entire review of those cases, noted the "heavy burden borne by a defendant who seeks to overcome the presumption of imprisonment" and found that "[i]n none of these cases was the defendant able to show that his character and condition were so unique or extraordinary, when compared to the class of defendants facing similar terms of incarceration, that he was entitled to relief from the presumption of imprisonment." Supra at 392. Further, the Evers court also pointed out that in weighing the "serious injustice" standard found in the statute the sentencing court should consider the peculiar facts of a case to evaluate deterrence, because "there will be an overwhelming presumption that deterrence will be of value" for first and second degree crimes. Supra at 395. The Supreme Court also addressed the "serious injustice" exception to the presumption of incarceration in State v. Jabbour, 118 NJ. 1 (1990). The Court again noted its applicability only in extraordinary circumstances, not merely when "defendant is a first offender or because the 5

mitigating factors preponderate over the aggravating factors" or "merely because the mitigating factors so outweigh the aggravating factors as to justify downgrading the offense" pursuant to N.J.S.A. 2C: 44-1 (f) (2). Id. at 7. Imprisonment must be such a serious injustice that it "overrides the need to deter others." The Court then immediately noted: "[rjarely will general deterrence not be furthered by imprisonment for serious crimes, (citing to Jarbath) To forestall the deterrent effect of incarceration, the defendant must be idiosyncratic." Id. (emphasis added) Defendant's criminal acts, relating both to the Bias counts and the Hindering count, undeniably are acts where deterrence must be a primary consideration of punishment. The legislative purpose for establishing Bias Intimidation as a separate and distinct criminal offense is to be able to punish same as a separate and distinct criminal offense, and through that additional, enhanced punishment, deter potential future acts of bias by the offender or other potential offenders. Undoubtedly the legislative intent in making Hindering under subsection (b)(3) ofNJ.S.A. 2C:29-3 a second degree offense was to punish those who not only commit crimes, but then interfere with detection of the crime itself or their role as the perpetrator. Again, deterrence should be a primary consideration, otherwise detection and punishment will be thwarted. Defendant Dharun Ravi has failed to present any factors whatsoever which satisfy the standard of "serious injustice" under N.J.S.A. 2C:44-l(d). Defendant has not established what makes him "idiosyncratic" such that the legislative purpose of grading these offenses as second degree and, as such, designating them as offenses that require incarceration can legally be overcome. Further, the State suggests to this Court that the nature, extent and diversity of the criminal convictions and the underlying acts which supported the jury verdicts on same should also dispel the concept that defendant is the type of defendant that the Legislature envisioned when it provided for the exception, to be used in "exceptional circumstances" where the "rare defendant" meets the high standard set forth. Defendant Dharun Ravi committed the criminal acts that form the basis for the three (3) second degree offenses on three (3) diverse dates. When one considers that fact alone, it should arguably place defendant outside the realm of any possible consideration for an exception to the presumption of incarceration. In addition to that fact, the Court should also bear in mind that in conjunction with the second degree Bias charges there were the underlying acts of Invasion of Privacy, which represent separate and distinct acts of criminal conduct from the Bias charges. Further, in conjunction with the second degree Hindering charge there are the additional counts of Tampering and Hindering committed by defendant, again not only representing separate and distinct acts of criminal conduct, but also indicative of behavior that disrespects the role of law enforcement in society and the criminal justice system itself. The State submits that these additional factors should unquestionably put the matter of defendant being considered an "idiosyncratic" offender who can satisfy the "serious injustice" standard to rest once and for all. Therefore, the State respectfully urges that the presumption of incarceration applicable to the second degree counts of which defendant has been found guilty, Counts 4, 8 and 12, must be applied by this Court.

N.J.S.A. 2C:44-l(e), Exception to presumption of non-incarceration Additionally, N.J.S.A. 2C: 44-1(e) mandates that the presumption of non-incarceration for third and fourth degree offenses shall not apply if the defendant, as in this case, has been 6

convicted of third or fourth degree crimes constituting Bias Intimidation in violation of N.J.S.A. 2CJ6-1. Therefore, not only does subsection (d)) support a term of incarceration in the second degree range on Counts 4, 8 and 12, subsection (e) also mandates that there is no presumption of non-incarceration for Counts 2 and 6, third degree Bias Intimidation. The State submits that this provision of the sentencing statute must be recognized and applied by this sentencing court. N.J.S.A. 2C:44-1(T)(2), Downgrading of second degree offenses Under N.J.S.A. 2C:44-l(f)(2), there are two findings the court must make to sentence a degree lower on a second degree crime: 1) the court must be clearly convinced that mitigating factors substantially outweigh aggravating factors and 2) the court must find that the interest of justice "demands" the lower sentence. As to the first finding, this standard is not met by merely counting up the aggravating factors found by the sentencing court against the mitigating factors found by the sentencing court. This standard is only properly evaluated "by a thoughtful weighing" of those factors. State v. Denmon, 347 N.J. Super. 457, 467-468 (App. Div.), certif. denied 174 NJ. 41 (2002). As to the issue of the "interest of justice" standard set forth in N.J.S.A. 2C:44-l(f)(2), the holding in State v. Megargei, 143 NJ. 484 (1996) is solidly on point with the facts of the case at bar. First, the standard was described as a "high" one in that decision. Further, the Supreme Court stated that "[d]eterrence has been repeatedly identified in all facets of the criminal justice system as one of the most important factors in sentencing. Deterrence is the key to the proper understanding of protecting the public." Id at 501. Most important to the case at bar is the following language from the Megargei decision: "Furthermore, in those cases in which the Legislature has acted to provide an enhanced penalty for conviction of a particular offense, the downgrade of the offense requires more compelling reasons than the downgrade of an offense for which the Legislature has not attached an enhanced penalty." The Supreme Court then said, "[ujnder such circumstances, trial courts must exercise extreme caution." (emphasis added) Similar to the kidnapping charge in Megargei, the Legislature has created an enhanced penalty for Bias Intimidation. To downgrade the sentencing of the second degree Bias counts in this matter would clearly and utterly thwart and eviscerate the legislative purpose of providing for an enhanced penalty upon conviction for a bias crime violation. In addition to the dictate that the discretion provided for in the statute should be exercised with "extreme caution", the Supreme Court in Megargei also re-iterated that a sentencing court must always identify relevant sentencing factors and describe the discretionary balancing of same. Further, the Supreme Court observed and held that "[a] trial court should also state why sentencing the defendant to the lowest range of sentencing for the particular offense for which he was convicted, is not a more appropriate sentence than a downgraded sentence under section 44:lf(2)." Id. at 502. (emphasis added) Therefore, the State submits that, in essence, there are three decisions the sentencing court must make, all of which are defendant's burden to overcome, before exercising its discretion under this provision. A careful review of the facts of this case that support the second degree counts, the nature of the crimes themselves, as well as the elements concerning the need to protect the public

and the deterrence associated with the crimes, all support the argument that this provision of the statute should not and cannot be applied in this case. Bias Intimidation convictions The State suggests that it is extremely significant that the multiple findings of bias intimidation based upon Tyler Clementi's sexual orientation were made by the jury on all counts related to the Invasion of Privacy statute. Those finding should speak for themselves. Most significant and noteworthy is that there were four (4) counts of Bias Intimidation; on the first one, Count 2, the finding was under subsection (a)(3)(b) of the statute (N.J.S.A. 2C:16-1), on Count 4, the finding was under subsections (a)(2) and (a)(3)(b), and on Counts 6 and 8, the findings were under all subsections of the statute. Therefore, the convictions represent a finding by the trial jury of defendant's guilt under the Bias Intimidation statute as to each and every subsection that the legislature determined would establish a culpable motivation. In other words, the jury found that defendant engaged in purposeful acts and conduct in two out of four of the Bias Intimidation counts and knowing acts and conduct in three out of the four counts, as well as finding in all four counts of Bias Intimidation that he caused Tyler to be intimidated. In addition, this shows that the jury carefully considered the evidence and the law and engaged in thoughtful deliberations which distinguished Tyler Clementi and M.B. under the law. In discussing this issue the State feels compelled to note that it has never labeled defendant Dharun Ravi a "bigot" or a "hatemonger". Those inflammatory terms were injected into this case by defendant alone. The State's position has always been, in its presentation to the grand jury, in its response to legal motions by defendant, and in its presentation to the trial jury, that the facts and the law support a finding that defendant committed the underlying acts of invasion of privacy or attempted invasion of privacy with a motivation of bias because of Tyler and M.B.'s sexual orientation. Prior to 2001, bias motivation was an enhanced penalty provision which required, on a proper finding, that a court impose a sentence beyond that authorized by the underlying crime. The penalty enhancement was directed at the greater harm caused by bias motivated crimes and the State's legitimate interest in protecting its citizens against bias motivated crimes. State v. Mortimer. 135 NJ. 517, 537 cert, denied 513 ITS. 970 (1994). "[T]he Legislature... treat[s] bias motivated offenses with an enhanced level of severity because bias crimes, by their nature, have distinct harmful effects....[a]s the Supreme Court has noted, bias motivated crimes are more likely... to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." Id. at 529. In addressing one of these prior provisions the Court recognized that "the statute imposes heavy penalties for such conduct, effecting a deterrent and retributive policy, to discourage its future occurrence." Id. at 537. In State v. Colella. 298 N.J. Super. 668, 676, certif. denied 151 N.J. 73 (1997), it was again recognized that "[t]his statute was intended to discourage bias motivated crimes...it was designed to treat bias motivated crimes more specifically and harshly." In Apprendi v. New Jersey. 530 ULS. 466 (2000), the United States Supreme Court held that the finding of bias necessary to enhance sentence was to be made by a jury. In accordance therewith, in 2001. N.J.S.A. 2CJ6-1 was enacted. Subsection (c), "Grading, " makes clear that this statute is still designed to enhance the grading of the underlying crime providing, in relevant part
8

that " ...bias intimidation is a crime one degree higher than the most serious underlying crime...". Subsection (e), "Merger," provides that a conviction for bias intimidation "shall not" merge with the conviction on the underlying offense or vice versa. The court "shall impose" separate sentences for the bias intimidation conviction and the underlying offense. In addition, subsection (f) provides that a court may order, in addition to any term of imprisonment, that defendant (1) complete a class or program on sensitivity to diverse communities or similar training; (2) complete a counseling program intended to reduce the tendency toward violent and antisocial behavior or (3) make payments or other compensation to a community-based program that provides services to victims of bias intimidation. Review of Aggravating and Mitigating Factors under N.J.S.A. 2C:44-1 The State submits that the following aggravating factors, as set forth in N.J.S.A. 2C:44-l(a) should be found by the Court in this matter: 1) Nature and circumstances of the offense and the role of the actor therein In the matter at bar, defendant Dharun Ravi has been convicted of four (4) counts (Counts 1,3, 5, 7) where there were two victims, Tyler Clementi and M.B., of Invasion or attempted Invasion of Privacy. These individuals were not only intentionally targeted by defendant, but also were the foreseeable victims. This can justify imposition of consecutive sentences. See State v. Carey. 168 N.J. 413,429 (2001) The State is not requesting that type of finding by the Court in this matter and does not seek consecutive sentences on any of these counts. However, the State is requesting that this Court consider the factor of multiple victims in four counts of this indictment to find this aggravating factor in the case at bar. State v. Travers, 229 NJ. Super. 144, 154 (App. Div. 1988). In addition, the State requests that the Court evaluate the following factual considerations as to the events of September 19, 2010: when Tyler learned of defendant's Twitter message, sent out on September 19th and posted on defendant's public Twitter page, what he knew was what the tweet stated: "Rommate asked for room till midnight. I went into molly's room and turned on my webcam. I saw him making out with a dude. Yay." Logically, as far as Tyler knew or might have surmised, everything that went on between he and M.B. that night had been viewed by defendant. However, once he saw the second tweet posted by defendant from September 21st, he might well have believed that others "tuned in" on Sunday night and saw everything, or at least might have seen as much if not more than defendant revealed through the tweet. Imagine that feeling, especially the feeling of the unknown. Furthermore, if Tyler hadn't found out and literally pulled the plug on defendant's computer, it is unnerving to think of what might have actually transpired would there have been viewing parties?; would others who "tuned in" have recorded it or otherwise preserved it to be viewed in the future? The fact that the disclosure and viewing by others did not occur was not due to anything defendant Dharun Ravi did. In reality, defendant was determined to be certain that the open webcam was going to be successful - by checking on his webcam's operability using Alissa Agarwal's computer and by checking on the operability and camera angle using Lokesh Ojha's computer. Therefore, defendant should not be credited for the fact that the convictions for events on September 21 st were only for attempted Invasion of Privacy. In his sentencing memorandum defendant cites to cases where victims were actually harmed in some 9

purportedly violent manner, usually physically, and seeks to distinguish his conduct from such cases. Defendant is neither entitled to nor deserving of such consideration because the only reason the events of September 21 st did not result in more substantial harm was because Tyler himself prevented the successful conclusion to the criminal acts that defendant set in motion earlier that night. There is no mitigation recognized under the law for an attempted crime. Therefore, defendant should be sentenced consistent with the jury's determination of his knowing criminal conduct on September 19th and September 21 st , 2010 involving the invasion and attempted invasion of Tyler and M.B.'s privacy while they engaged in private, consensual sexual activity.

3) Risk defendant will commit another offense 9) Need for deterring the defendant and others from violating the law The State submits that the varied nature of the criminal charges of which defendant stands convicted must be taken into consideration by this Court when assessing the risk that defendant will commit another offense, as well as the need to deter defendant and others from violating the law. As previously addressed under the presumption of incarceration section of this sentencing memorandum, New Jersey sentencing law has recognized that it would be a "rare case" where imprisonment for serious crimes would not "further the goals of general deterrence." Jarbath. supra at 408. On the issue of deterrence, the undeniable fact here is that defendant committed crimes of invasion and bias on September 19th. Then, undetected and undeterred, he attempted to commit those same crimes on September 21 st . Then, once his criminal conduct did come to light, he chose to engage in numerous, affirmative steps to tamper with physical evidence and a witness, and to hinder the investigation of those crimes and his apprehension for same. If any case demands a finding of these two factors, it is undoubtedly the matter of State v. Dharun Ravi. To suggest that there is not a risk that this defendant, who did not engage in one aberrant criminal episode, but rather multiple acts spanning a five-day time period, would do the same at some time in the future is speculative at best. The State believes that such a claim is reckless and unfounded. In addition, the need to deter this defendant and others is overwhelming, given the nature of the charges themselves and the type of criminal behavior they represent. Can there be any argument whatsoever that it is of the utmost importance to punish those who violate the Bias Intimidation statute so that others may be deterred from similar criminal acts in the future? Can there be any argument whatsoever that without appropriate punishment for those who attempt to interfere with law enforcement, especially when law enforcement is acting on behalf of innocent citizens who have been victimized by criminal acts perpetrated against them, that law enforcement cannot properly do its job to investigate and apprehend offenders? The State submits that the aggravating factors of risk and need to deter others are unquestionably and overwhelming supported by the facts established in this case and the criminal convictions that resulted from those facts.

Mitigating factor (b) (1) No history of prior delinquency or criminal activity The State concedes that mitigating factor (b)(7), no history of prior delinquency or criminal activity, may be applicable in this case to defendant Dharun Ravi. However, the State would urge this Court to give this factor minimal weight in deciding upon an appropriate sentence for this defendant. Case law supports giving little or even no weight to this mitigating factor when, as in 10

Dharun Ravi's case, the defendant is a young adult who hasn't had time to accrue a significant criminal history. See State v. Copling, 326 N.J. Super. 417, 439-440 (App. Div. 1999), certif.. den. 164 N J . 189 (2000) (defendant age 19 and minimal weight given to factor); State v. Soto. 340 N.J. Super. 47, 72 (App. Div.), certif. den. 170 N J . 209 (2001) (defendant age 23 and no weight given to this as a mitigating factor).

Mitigating factors (W2\ ($), (9) and (10) The State adamantly disputes that mitigating factors (b)(2), (8), (9) and (10) apply to this defendant. The facts of this case, as proven beyond a reasonable doubt by the jury's verdict on this fifteen-count Indictment and the underlying proofs for each, are sufficient substantiation of defendant's purposeful, calculated, knowing and malicious conduct. Those facts should also dispel and dismiss defendant's arguments on (2), (8), (9) and (10). The State will rely upon this Court's recollection of same without specifically detailing those facts in this sentencing memorandum. Further on this point, the State would note that it has attempted to restrict the arguments in this sentencing memorandum to the facts presented during trial. However, in order to appropriately respond to certain arguments made by defendant, which have relied significantly on statements of many individuals who did not testify at trial, the State feels it is necessary to reference materials not wholly from the trial testimony itself, but which were provided in the State's discovery to defendant. Specifically in that regard, as to mitigating factor (b)(9), relating to character and attitude of the defendant, the State submits for the Court's review certain IM chats with Jason Tarn (these were identified and marked as State's Exhibit 52 during trial) that defendant engaged in on September 23 rd , 2010, the day that a counselor and residence life staff for Rutgers University told defendant that Tyler was missing and presumed to have committed suicide. Defendant went home to Plainsboro in the late morning hours of the 23rd and by 3:00 in the afternoon he was engaging in IM chats with Tarn: 3:06 PM thedharun: "How can I convince my mom to let me go back Friday night and get drunk." Later in that conversation, defendant tells Tarn: 3:53 PM thedharun: "Yeah. Honestly if he didn't suicide I might be in trouble. But now they're more worried about me doing something stupid 3:54 PM They don't know I love money too much to suicide," One might argue that these uncensored statements reveal some aspect of the true "character and attitude" of defendant. This is an individual who in the 12 - 16 hours before these chats has learned his college roommate has probably committed suicide. Further, he has also learned that his roommate has reported to Resident Assistant Grover that defendant used his webcam to "spy" or attempt to "spy" on the roommate and his male guest on two occasions. Defendant has offered nothing in his sentencing memorandum to demonstrate or even suggest that his attitude at this point

11

in time is any different than the callous and arrogant attitude displayed in these chats. chats clearly militate against factors (b)(2), (8), (9) and (10).

The IM

Defendant's reliance on the "non-statutory mitigating factor" of the disposition of codefendant Molly Wei's case (Db 15) deserves specific mention and argument concerning its nonapplication to defendant, most importantly because the reasons cited by defendant on this point are indisputably erroneous and invalid. To suggest that Molly Wei's conduct "at times" made her as culpable as defendant Dharun Ravi is only accurate as to Counts 1 and 3 of the fifteen-count Indictment against defendant, involving events on September 19th. There was no proof whatsoever for the State to have presented to a grand jury for their consideration a Bias Intimidation charge against Wei for her acts of criminal conduct in committing the acts of Invasion of Privacy under N.J.S.A. 2C: 14-9(a) and (c). Further, there was no proof whatsoever concerning any further acts of criminal conduct by Wei, as opposed to defendant who then attempted to commit acts of Invasion of Privacy on September 21 st , such acts again motivated by bias. Further, defendant committed the seven (7) additional counts involving Tampering and Hindering. By contrast, Wei actually assisted law enforcement in their investigation, admitted her own participation which led to criminal charges against her, revealed defendant's acts of Tampering and even contacted law enforcement after providing her initial statement when she became aware of additional information that she thought might be helpful in the matter related to Tyler's disappearance. Her cooperation with law enforcement then continued, even after being charged with criminal complaints, by supplying another statement to the Prosecutor's Office and testifying as a witness for the State in defendant's trial. It is nothing less than absurd to suggest that Wei's limited criminal conduct on September 19l , which can fairly and accurately be portrayed as never occurring without the visit by defendant to her room and defendant's request to use her computer, is remotely similar to defendant's planned, malicious and continued criminal conduct spanning the time period of September 19th through September 23 r ,2010. This argument by defendant should be totally rejected by this Court. The character witnesses who testified on defendant's behalf at trial had no basis of knowledge to offer the opinion that defendant Dharun Ravi was not biased toward homosexuals primarily because they all candidly admitted that they had never even discussed such a subject with defendant and also because their personal knowledge of defendant was quite limited. The character witnesses defendant seeks to offer in his sentencing memorandum also suffer from some of the same faults: lack of personal knowledge of defendant and lack of discussion on the topic of homosexuality. It is curious to the State that while many, if not most, of these individuals were on the witness list, they were not called to testify before the jury who was deciding defendant's bias motivation as to the criminal acts charged in the indictment. Was it because these witnesses did not want to be subject to cross-examination by the State? Was it because the testimony of some of these witnesses would have opened the door to conversations between themselves and defendant, as recorded in their statements to law enforcement, that they didn't want the jury and the public to hear? It is interesting to note that while there were seven character witnesses at trial who testified on defendant's behalf, not one of those witnesses has a letter included in the packet of letters submitted with defendant's sentencing memorandum. Conversely, there is only one person who has a letter included in defendant's sentencing memorandum who did testify at trial and that is Alissa Agarwal. Beyond being interesting, it is also significant to note that Alissa Agarwal, who testified as an important fact witness against the defendant, is now presented as a "character" witness for the 12

defendant through a letter to the Court submitted with defendant's sentencing memorandum. Agarwal testified that she received both of defendant's tweets concerning the events involving Tyler and M.B.: the tweet on September 19th and the tweet on the 21 st . More importantly, she testified that on the 21 st she was with defendant and others from Davidson C and defendant was trying to "encourage" all of them to log onto iChat later that evening and view Tyler and his guest through defendant's webcam on his computer because "it was happening again". During cross-examination these were clearly points on which defendant vigorously challenged not only Agarwal's memory but also her credibility. In addition, Agarwal testified that defendant came to her room, shortly after that conversation, and used her computer to access his iChat and check that the webcam on his computer was operating, obviously to be sure that when people logged in later it was properly working so that they could view Tyler and his guest engaging in sexual activity. Again, this became a point of extensive cross-examination which questioned and challenged Agarwal's memory of the events concerning defendant's actions. After unmistakably implying (if not directly indicating) that Agarwal should not be believed as a fact witness, defendant is now supporting her credibility because she is willing to tell this sentencing court that defendant's "humor may seem offensive", but she can "vouch that words have no malicious intentions." (Db Exhibit A) Defendant's 180 degree turn on the credibility of this witness is nothing short of astonishing.

13

Conclusion Defendant Dharun Ravi must be punished for the three separate and distinct criminal wrongs represented by the guilty verdicts in this case: invasion of privacy, bias intimidation and tampering and hindering. Even that analysis is giving defendant credit he frankly does not deserve, because the fifteen criminal convictions truly represent more than just three criminal wrongs. Further, there are crimes that occurred on September 19th, September 21 st and also on September 22" and 23 r ,2010 representing a continuing course of criminal conduct, not an isolated criminal event. It cannot be reasonably disputed that a request by the State for consecutive sentences would be legally and factually supported. State v. Yarbough, 100 NJ. 627, 646 (1985). However, as Yarbough also suggests, the considered "solution" in this case is more appropriately a sentence where additional crimes, which are distinct and dissimilar in nature and objective, bring incremental punishment. Id. at 638-639. Some of the criteria to be considered in that regard would be that there can be no "free crimes", that "the crimes and their objectives were predominantly independent of each other", that the crimes were committed at different times and under circumstances that suggest more than "a single period of aberrant behavior", that the crimes "involved multiple victims" and that "the convictions for which the sentences are to be imposed are numerous". Id. at 643-644. The State submits that each and every one of those enumerated criteria, as set forth in Yarbough, apply in this matter. However, as with the revised plea offer made in November 2011, the State, supported by the victims in this matter, is not asking this Court to sentence defendant Dharun Ravi to the maximum sentences or to consecutive sentences. The State is requesting this Court to recognize and honor the sentencing statute and the mandates set forth in N.J.S.A. 2C:44-1, et seq. and the well-established relevant case law concerning 1 ) the presumption of incarceration on the second degree crimes and correctly decide that defendant has failed to meet the exceptional standard required to find a "serious injustice"; 2) decline to find that the Court is "clearly convinced" that a downward departure is "in the interest of justice" on any of the second degree counts; and 3) recognize that there is no presumption of non-incarceration on the third degree Bias Intimidation counts. Simply put, what is being sought is merely what the New Jersey sentencing statutes and relevant case law mandate and the facts in this matter demand: a period of imprisonment which is in proportion to the multiple crimes committed by defendant Dharun Ravi and for which he was found guilty beyond a reasonable doubt by the trial jury. Respectfully submitted,

JULIA L. McCLURE First Assistant Prosecutor

C: Steven D. Altman, Esq. Assistant Prosecutor Christopher Schellhorn

14