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Sexual assault trial begins Deputy accused by man in his custody

A state police forensics team darkened the Sheriff's Office's Elma substation one Saturday in January then searched it under the glare of a special light that highlights bodily fluids.

They found no evidence to show Deputy George Avery Jr. raped a man in his custody there days earlier, as he's accused of doing.

The alleged victim had told police and prosecutors, and repeated Monday in Avery's County Court trial, that he cleaned himself off with paper products after the rape, as Avery had told him to.

The accuser, a 24-year-old student at the University at Buffalo, then discarded the towels in a wastebasket.

But three days after the attack was said to have occurred, the forensics team found no physical evidence to use against Avery -- not on the substation's surfaces, in its trash cans nor in the trash container outside -- State Police Lt. Edward Kennedy told a courtroom Monday.

With his family and friends in the gallery, Avery sat anxiously as his trial began on charges that could send him to prison for 25 years.

The deputy is accused of pinning against a wall a suspect he had charged with driving while his ability was impaired by drugs. The man said Avery then sexually assaulted him sometime after midnight Jan. 10.

Avery's friends call the charges ridiculous. Friends of the accuser have said in writing that he is dishonest. But prosecutor Scott Riordan set out to prove Avery's guilt with what has been learned from Avery himself, from the district attorney's investigators and from medical personnel.

When both sides rest, Judge Sheila A. DiTullio will render the verdict because Avery, 52, has waived his right to a jury trial.

So far, Riordan has posed several questions to the judge:

* When investigators told Avery he had been accused of a crime, why did Avery say that it must be a sexual allegation, since he felt he had not roughed up the man or treated him badly?

* Why did Avery say he had searched his suspect just at the scene of the arrest and only later recalled a second search at the substation?

* What about a past defendant who Riordan said will testify that Avery once threatened to sodomize him with a police baton?

* How did Avery know -- when Riordan said he shouldn't have yet known -- that his accuser claimed some of Avery's bodily fluid got onto him? The investigators had withheld that detail in their first interviews with him.

Further, Dr. Aric Kupper, of Buffalo General Hospital, said he believes the tear in the 24-year-old's rectum was caused by a sexual assault and could not be blamed on the constipation that can be brought on by narcotics, such as those Avery's accuser takes.

Avery's defense lawyer, Philip M. Marshall, is expected to call his own experts to assert that the deputy could not have inflicted the rectal damage. And he said he will disprove the claim that Avery had threatened to sexually assault another man in his custody.

The case so far is about Avery's statements, the physical evidence that hasn't been found and the character of the accuser.

Kupper examined the man for evidence of rape two days after the attack reportedly occurred and said he found the patient "very withdrawn," displaying a "minimum of emotion." Similarly, when the 24-year-old testified Monday, he did so in a monotone.

"It made me feel dirty," the accuser said of the alleged attack. "It made me feel violated. It's hard to describe in words. I felt like less of a person."

Why did he wait for two days to report the rape, after he had again been charged with driving while his ability was impaired by East Aurora police?

He gave several responses. Avery had intimidated him, he said. He said Avery had claimed to be "a rogue cop -- that his bosses didn't approve of his methods, but he got results."

Mostly, however, Avery's accuser said he was stunned for days and too ashamed to face his parents. He also wanted to spare them the pain he felt, he said.

Why did he finally come forward?

"I felt like I had to," he said. "I couldn't let this happen to another person."

Defense lawyer Marshall said in his opening argument that "any police officer" who made the arrest in Elma the night of Jan. 9 would now be sitting at the defendant's table because the 24-year-old was determined to lie to avoid criminal charges.

Marshall and Riordan jousted over the significance of a bad-check charge the man faces in Elma Town Court and the charge of filing a false statement. The 24-year-old said in a sworn statement that a friend must have bounced the check when sheriff's detectives found evidence to prove otherwise.

But Marshall dug in to emphasize that the forensics team found none of Avery's DNA. Not only did they find nothing at the scene, they also chose not to ask Avery for the clothes he'd been wearing that day nor did they seek to search Avery's home when the deputy answered their questions and volunteered a sample of his DNA.

The implication was that the lack of evidence would have been impossible to ignore.

e-mail: mspina@buffnews.com

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