HUPD Omits Elster Arrest From Blotter, Violates Law

Cambridge District Court released Joshua M. Elster '00 on $10,000 cash bail yesterday afternoon.

Elster was charged with three counts of rape and two counts of assault and battery on a Harvard female student in an arraignment Monday afternoon, according to court records.

He pleaded not guilty on all counts, according to his attorney, Kenneth F. D'Arcy '58.

District Court Judge George R. Sprague '60 said he expected Elster to return to Kirkland House yesterday with a police escort to collect his personal belongings from his dormitory room.

"I set three conditions for his release," said Sprague, who presided over the arraignment.

"The first was that he stay away from the victim. The second was that he stay away from Harvard altogether. The third is that he is not toleave the Commonwealth of Massachusetts [unless heappeals to the court to reverse its decision]," hesaid.

The court has scheduled a pre-trial hearing forFeb. 20.

According to court documents, the alleged rapeoccurred last Wednesday, Jan. 28. But the incidentwas not reported to the Harvard University PoliceDepartment (HUPD) until Thursday, Jan. 29.

Harvard authorities said they understood thatthe alleged rape occurred on the day it wasreported--Thursday.

"To the best of my knowledge, the allegedattack occurred and was reported to the policeconfidentially on the 29th," said Harvardspokesperson Joe Wrinn.

Wrinn said police will keep Elster off theHarvard campus by force, if necessary.

"He's not going to be returning to Harvard, ifat all, until such a time that the criminalcharges are resolved," he said.

"We understand that the court ordered that heis not to return to the Harvard campus. The[Harvard] police department has been apprised andwill enforce it," Wrinn said.

Dean of Students Archie C. Epps III said theUniversity is most concerned about Elster'sreturning to campus now that he has been releasedon bail.

Epps said the University has a definite plan toactively prevent Elster from coming near theHarvard campus.

"We thought all this through, and we have aplan for keeping him away from the campus which Icannot go into in detail," Epps said.

Elster or his attorney indicated to the judgethat Elster might request permission to return toArizona, according to Sprague.

Sprague said that "Harvard's General Counselsuggested that [Elster] take a leave of absence."

Attorneys for the University could not bereached for comment last night.

Sprague and Robert F. Daut, assistant districtattorney in charge of the case, both declined toexplain why Elster was charged with three countsof rape and two counts of assualt and battery.

"Those were the charges that were sought," Dautsaid.

David B. Poole, a clinical instructor at theLaw School's Criminal Justice Institute,speculated that Elster is accused of threeseparate offenses of rape.

"What I assume happened is that there wereallegedly three separate acts which legally couldbe called rape," said Poole, formerly a Bostonpublic defender.

"There [might have been] more than one act ofpenetration," he said. "Rape is any non-consentedsexual penetration."

Poole added that he cannot be sure aboutanything without hearing the full facts of thecase.

He also said the two counts of battery andassault do not necessarily refer to violentactions.

"Assault and battery is an unconsented-totouching. In certain circumstances, grabbinganother person's arm could constitute assault andbattery," he said. "It could be something lessthan striking a blow."

Cambridge District Court does not try rapecases. If the rape charges are not dropped, thecase will move to Cambridge Superior Court forreview.

"He was arraigned in the District Court,"Sprague said. "But we have no jurisdiction overcrimes of this type."

The case is currently being reviewed bySuperior Court prosecutors to see if it should bepresented to the grand jury for indictment, Dautsaid.

The District Attorney will present the facts ofthe case to the grand jury, which will then decidewhether to indict Elster.

The presentation to the grand jury is secret,and the date is not publicized, according toPoole.

If Elster is indicted, he will be arraigned andthen tried in the Superior Court.

Poole said in most cases the defendant isarraigned "a relatively short time" after theindictment.

Sprague said the trial would probably takeplace several months after the Superior Courtarraignment

The court has scheduled a pre-trial hearing forFeb. 20.

According to court documents, the alleged rapeoccurred last Wednesday, Jan. 28. But the incidentwas not reported to the Harvard University PoliceDepartment (HUPD) until Thursday, Jan. 29.

Harvard authorities said they understood thatthe alleged rape occurred on the day it wasreported--Thursday.

"To the best of my knowledge, the allegedattack occurred and was reported to the policeconfidentially on the 29th," said Harvardspokesperson Joe Wrinn.

Wrinn said police will keep Elster off theHarvard campus by force, if necessary.

"He's not going to be returning to Harvard, ifat all, until such a time that the criminalcharges are resolved," he said.

"We understand that the court ordered that heis not to return to the Harvard campus. The[Harvard] police department has been apprised andwill enforce it," Wrinn said.

Dean of Students Archie C. Epps III said theUniversity is most concerned about Elster'sreturning to campus now that he has been releasedon bail.

Epps said the University has a definite plan toactively prevent Elster from coming near theHarvard campus.

"We thought all this through, and we have aplan for keeping him away from the campus which Icannot go into in detail," Epps said.

Elster or his attorney indicated to the judgethat Elster might request permission to return toArizona, according to Sprague.

Sprague said that "Harvard's General Counselsuggested that [Elster] take a leave of absence."

Attorneys for the University could not bereached for comment last night.

Sprague and Robert F. Daut, assistant districtattorney in charge of the case, both declined toexplain why Elster was charged with three countsof rape and two counts of assualt and battery.

"Those were the charges that were sought," Dautsaid.

David B. Poole, a clinical instructor at theLaw School's Criminal Justice Institute,speculated that Elster is accused of threeseparate offenses of rape.

"What I assume happened is that there wereallegedly three separate acts which legally couldbe called rape," said Poole, formerly a Bostonpublic defender.

"There [might have been] more than one act ofpenetration," he said. "Rape is any non-consentedsexual penetration."

Poole added that he cannot be sure aboutanything without hearing the full facts of thecase.

He also said the two counts of battery andassault do not necessarily refer to violentactions.

"Assault and battery is an unconsented-totouching. In certain circumstances, grabbinganother person's arm could constitute assault andbattery," he said. "It could be something lessthan striking a blow."

Cambridge District Court does not try rapecases. If the rape charges are not dropped, thecase will move to Cambridge Superior Court forreview.

"He was arraigned in the District Court,"Sprague said. "But we have no jurisdiction overcrimes of this type."

The case is currently being reviewed bySuperior Court prosecutors to see if it should bepresented to the grand jury for indictment, Dautsaid.

The District Attorney will present the facts ofthe case to the grand jury, which will then decidewhether to indict Elster.

The presentation to the grand jury is secret,and the date is not publicized, according toPoole.

If Elster is indicted, he will be arraigned andthen tried in the Superior Court.

Poole said in most cases the defendant isarraigned "a relatively short time" after theindictment.

Sprague said the trial would probably takeplace several months after the Superior Courtarraignment