Fla. rape case allegations raise fair-trial questions

July 25, 1991|By Ellen Uzelac

A Florida prosecutor's decision to publicize allegations by three women that rape suspect William Kennedy Smith sexually assaulted them prompted debate yesterday in legal circles as to whether Mr. Smith will receive a fair trial.

"The prosecutor took off her gloves while William Kennedy Smith's hands were tied behind his back," said Stephen Gillers, a law professor who teaches ethics and evidence at New York University. "You can't cross-examine publicity. In my world, in the world of law, this is astonishing."

Moira Lasch, the assistant Palm Beach County state's attorney who is leading the prosecution, filed notice Monday that she intended to ask the three women to testify at the trial, scheduled to start Aug. 5. The next day, she put into the court file their sworn statements, which describe the 30-year-old Mr. Smith as "ferocious," "animal-like" and a "sicko."

Mr. Smith, a nephew of U.S. Sen. Edward M. Kennedy, D-Mass., is charged in Florida with raping a 29-year-old acquaintance at the seaside Kennedy compound in Palm Beach March 30. He has pleaded not guilty.

The three other women never reported to police that they were attacked. Two said they were assaulted in Washington, D.C., in 1988, and the third -- a former girlfriend of one of Mr. Smith's cousins -- said Mr. Smith attacked her at his family home in Manhattan in 1983.

The public disclosure of the new allegations has thrown the case into turmoil and has prompted a heated debate among legal scholars.

Yesterday, many of those scholars faulted Ms. Lasch, long known as a hardball prosecutor, for choosing not to keep the allegations under court seal until Palm Beach County Circuit Judge Mary Lupo could rule on whether to admit the testimony at the trial.

Ms. Lasch introduced the material under a Florida statute that jTC allows a defendant's past crimes or activities to be admitted into testimony if they demonstrate, for example, a pattern of behavior or intent to commit a crime.

Scholars said the widely reported allegations -- whether or not they are ever heard in court by a jury -- still would taint jurors, and they criticized Ms. Lasch for, in effect, circumventing a gag rule by throwing the allegations into the public domain through ,, the court record.

"I'm very disappointed," said James Quarles, a University of Florida law professor. "It may be that everyone who has done anything here has done it correctly. If that's so, the legal system has something to answer for. Why is this coming out now except for public titillation?"

Terence Anderson, a law professor at the University of Miami, said, "This certainly makes it much harder to get a fair trial. You're pouring fire onto what was already a publicized, explosive case."

Lawyers and scholars say Mr. Smith's legal team, with the trial two weeks away, now must prepare to defend him against four cases rather than one. For that reason alone, defense lawyers -- who are under the same gag rule as prosecutors -- are expected to seek a delay in the trial. A postponement, Mr. Gillers added, might also defuse some of the explosiveness of the new #F allegations.

Lawyers in Florida and elsewhere said Ms. Lasch had several reasons for invoking the "Williams Rule," as the Florida statute is called. Among them:

* Public disclosure of the new allegations could pressure Mr. Smith, a recent Georgetown University Medical School graduate, consider a plea bargain.

* It could serve to discourage Mr. Smith from testifying in his own defense or constrict his testimony.

* It makes it likely that "any jury on planet Earth," as Mr. Gillers put it, will know about the three women's charges against Mr. Smith when they consider the Florida case.

"It is an article of faith in the American legal system that you can always find a pure jury. I believe that's close to the truth. You can almost always find a pure jury," Mr. Gillers said. "If ever there was a case that tested that faith, this is it.

Paul Rothstein, a Georgetown University law professor, said he thought Ms. Lasch might have wanted to "set the public record straight" because there have been news accounts about the victim in the alleged Florida rape that have thrown her history and motives into question.

"This evidence is almost determinative if it gets before a jury," Mr. Rothstein said. "They will believe this evidence. It's very powerful. If it's admitted, William Kennedy Smith will see the handwriting on the wall. His chances of conviction go way, way up."

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