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Albany jury finds Dirschberger guilty of raping employee

ALBANY – Jurors who heard Al Dirschberger admit in court he “broke a moral code” concluded Friday that he also committed a felony sex crime. They convicted him of raping a county employee during a 2017 Albany conference.

He was immediately taken to jail.

The six female and six male jurors reached their verdict in Albany County Court after four days of statements and testimony and six hours of deliberation on charges that the former Erie County social services commissioner had sex with a 28-year-old subordinate without her consent.

The accuser and her family cried and hugged one another as they heard the verdict. Meanwhile, Dirschberger and his lawyers stood silent and still as the verdict was read and swiftly left the courtroom.

"I think the verdict was wrong, and we plan to appeal," said defense lawyer James Knox.

The mother of the victim said the family was overjoyed at the outcome.

"Justice was served," she said. "He thought he had power over her, and he was proven wrong."

Before Friday's verdict, Dirschberger had already sustained a severe hit to his reputation by admitting he cheated on his wife and had sex with a lower-level employee half his age. Several witnesses also testified that he encouraged the woman and other staffers to drink throughout the night, footing the bill for a cocktail spree that led to their intoxication.

"I was not very proud of what I'd done," Dirschberger testified, adding he was prepared to give up his job because "I broke a moral code."

The issue for the jury was whether he had sex with the female employee without her consent.

The third-degree rape charge, a felony, covers instances in which a person does not give consent to sex or is incapable of giving consent. The prosecution did not argue the accuser was passed out or too drunk to give consent, but that she gave verbal and physical indications that she did not consent.

The third-degree criminal sexual act charge, the other felony charge, refers to other sexual conduct with a person who did not give consent.

The Buffalo News does not identify victims of sexual assault without their consent.

After the verdict, Knox asked the judge to allow Dirschberger to remain free on bail, given his lack of criminal history. But Judge Roger McDonough put him in custody, citing the seriousness of the violent felony conviction. Dirschberger is scheduled to be sentenced April 12. He faces up to four years in state prison on each count.

"This victim was forced into sexual contact by a person with power over her, despite repeatedly telling him 'no,' and being too intoxicated to legally consent," Albany County District Attorney David Soares said in a statement. "We are proud to deliver justice to her and to those who have supported and believed her."

The lead prosecutor for the Albany County District Attorney's Office highlighted the seriousness of the injuries sustained by the victim, carefully going over the documented physical evidence of swelling, abrasions, lacerations and bleeding sustained by the employee. A nurse trained in rape evidence collection said the injuries were consistent with the accuser's story and evidence of sexual trauma.

Prosecutor Jennifer McCanney stressed the woman's assertions that despite being intoxicated, she repeatedly said no to Dirschberger while the two were in bed together and, at one point, tried to move away from him because he was causing her pain. She held up photos of injuries from the hospital exam and images of blood-stained sheets.

McCanney questioned whether all that trauma could have occurred from the roughly 20 minutes of intercourse and oral sex that Dirschberger testified having with the woman.

"He wants you to believe that she was telling him that it felt oh, so good, but yet the next day she could barely walk," McCanney said.

She also asked jurors to trust the accuser told the truth when she said she only remembered "flashes" of what happened that night.

"She could have come in here and said, 'Oh, yeah, I remembered what happened, and he held me down, and I said no.' She came in here and she told you, 'I don't remember. I don't remember everything, but this is what I remember.' "

McCanney recounted the woman's limited testimony about her recollections that night.

"Ladies and gentlemen, the defense would like you to believe that this is a calculated story made up by her," McCanney said. "I submit to you that if this was, she would have done a much better job."

Dirschberger's lawyer sought to sow doubt among jurors by pointing out inconsistencies in the accuser's testimony and highlighting video footage showing the defendant and accuser touching, laughing and walking together to her hotel room. He questioned how she could have so many gaps in her memory about what happened that night when other recollections from that evening were clear.

He also noted that she didn't tell her boyfriend that Dirschberger spent the night in her hotel room at first.

He brought up that her boyfriend had sent her an email that morning about how much he missed her.

"You didn't want to tell him that you had an affair with your boss, did you?" Knox asked.

"I didn't want to tell him I was raped!" she yelled back, and then collapsed in sobs on the witness stand.

In closing arguments, Knox told jurors that regret does not equal rape and that the accuser's testimony did not make sense.

"It does make sense that they had sex all night. She woke up both sore and embarrassed, and confused emotionally about what it meant," he said. "I get it. He was not just her boss, but the head of DSS [Department of Social Services]. Everyone's had experiences where something that seemed like a good idea in the heat of the moment was later evaluated to be a bad choice."

Dirschberger had a moral failing, Knox said, but he didn't rape her, Knox said. He pointed out that Dirschberger cooperated with police when they came to Buffalo to interview him.

He also replayed a portion of a phone call recorded by police in which the woman first accused Dirschberger of raping her. He asked jurors to listen to what he called Dirschberger's surprised and shocked response as Dirschberger said, "What? ... Oh, my God! No, I did not! It was consensual ... when I woke up, you wanted to have more sex."

"Al's response to the call is a problem for the People's case," he said, stating that friction-related injuries can occur from consensual sex.

The defense downplayed Dirschberger's status as the woman's superior, saying he had no direct oversight of her work, didn't force her to drink alcohol or threaten her career and was not "some kind of mafia boss of DSS." The prosecution said Dirschberger's status as the woman's boss made her less willing to act in a way that would offend him, which is why he was not easily rebuffed.

Erie County Executive Mark Poloncarz said the verdict "confirms my administration took the correct course of action in performing an immediate investigation of the incident upon learning of it and asking for the defendant’s resignation after confirming that he had violated numerous Erie County policies."

Poloncarz, in a statement, noted the county declined to provide a defense or indemnity for Dirschberger upon learning of the charges because his actions did not fall within the scope of his public employment or duties.

"I do not tolerate any form of sexual misconduct, especially the abhorrent conduct in this case, and my thoughts are with the victim at this time," Poloncarz said.

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