State lost case when Smith took stand Cross-examination stumped prosecutor

December 12, 1991|By Christine Evans | Christine Evans,Knight-Ridder News Service

WEST PALM BEACH, Fla. -- Officially, the William Kennedy Smith trial ended at 5:14 p.m., Wednesday, Dec. 11, 1991, with a dramatic declaration -- not guilty.

Unofficially, it was all over Tuesday, when Mr. Smith took the witness stand and made mincemeat of the prosecutor.

Assistant State Attorney Moira Lasch, a 1977 University of Marylland law school graduate widely known for her methodical, dispassionate jury presentations, delivered a classic example to the Smith jury -- and it backfired. Legal analysts across the country faulted her for asking the wrong questions, for asking too many questions, for sticking to a prepared script instead of ad libbing, and for resorting to defensive sarcasm in a case that called for controlled indignation.

"The prosecution was doing real well right up until he took the stand -- and then they blew it," said Miami criminal lawyer Ted Klein, who teaches trial advocacy at the University of Miami. "I would have been embarrassed to ask some of the questions that Lasch asked; they were classic examples of what not to ask. If my third-year students did that, they would flunk."

Dade County defense lawyer Richard Sharpstein: "She took too long to do too little. Her cross-examination went on and on and got nowhere. It was like the voyage of the Starship Enterprise -- never ending."

One big problem, lawyers said, was Ms. Lasch's inflexibility. She stayed glued to her yellow legal pad, ticking off question after question, at times barely absorbing Mr. Smith's answers before firing off the next inquiry. She seldom turned her head to appraise the jury, and, as always, her one-note monotone failed to convey the emotion of the moment.

In short, said Mr. Sharpstein, "She didn't lay a glove on him."

Some courtroom observers -- and Ms. Lasch's boss -- defended her performance. It was, they said, an uphill battle, made more difficult by a crucial court ruling and by the defendant's careful, controlled testimony.

"I've heard from a lot of so-called experts and Monday morning quarterbacks, but those opinions weren't based on the facts," Palm Beach State Attorney David Bludworth said shortly before the verdict. "She and Miss [Ellen] Roberts have done a fine job."

He added that he was "very disappointed" that Judge Mary Lupo had denied testimony from three other women who the prosecution had said would say that Mr. Smith attacked them, too. The statements, called Williams Rule evidence, might have proved extremely damaging to Mr. Smith. Instead of facing one accuser, he would have had to answer to four.

The judge, however, was on solid ground in disallowing the testimony. To be admitted, Williams Rule cases must closely match the case at hand, meeting a "fingerprint" standard.

As soon as the judge said "no" to that testimony -- on the morning of trial -- the case boiled down to a "swearing match": her word vs. his.

Everything else was ancillary, almost unimportant, legal analysts said. The expert witnesses for both sides droned on and on, making precious few points for the time they took up on the witness stand. They testified about grass and sand and erections, but, judging by the jury's short deliberations -- one hour, 17 minutes -- their conclusions were not the subject of much debate.

Instead, the jury considered the flawed but compelling testimony of the Jupiter, Fla., woman. Here, Ms. Lasch seemed her best. She led the accuser through a chronology of the night's events, then brought her to a tearful crescendo when she described the alleged rape.

When the woman stepped down, analysts gave the state a high score.

But then Mr. Smith took the stand, and defense lawyer Roy E. Black, one of Miami's best, stepped back as his client told jurors a startlingly different account.

Mr. Smith, eyebrows raised, thin lips shut tight, paused before answering some questions. But, each time, the response was perfect, a confirmation of his consent defense.

On cross-examination, prosecutor Lasch hammered away -- in monotone -- at inconsistencies between Mr. Smith's account and that of his cousin Patrick Kennedy. She nit-picked at time discrepancies -- where Mr. Smith and the Kennedys went, and when. Too often, she asked open-ended questions, allowing Mr. Smith to give mini-speeches proclaiming his innocence.

"It was a poor performance, but not entirely her fault," said Georgetown University law professor Paul Rothstein. "The defendant is not required to give any prior statements, so she had no idea what Mr. Smith was going to say. She had to fashion an effective cross-exam on her feet.

"You have to be a very good storyteller, and Lasch is not a good storyteller. But she is fantastic at dotting all the i's and crossing all the t's."

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