ON TRIAL

An unprecedented legal drama will unfold later this month in Indianapolis as Mike Tyson goes before a jury on rape charges
January 20, 1992

On the morning of Jan. 27, former heavyweight champion Mike Tyson will begin standing trial on charges that, last July 19, in suite 606 of the Canterbury Hotel in Indianapolis, he raped an 18-year-old contestant in the Miss Black America beauty pageant. A conviction would almost certainly spell the end of Tyson's remarkable boxing career, but whatever the outcome, one thing is clear: The trial will constitute an event so extraordinary as to be virtually without precedent.

Historically, of course, American athletes have made their share of appearances in courtrooms. In 1921, in the so-called Black Sox Scandal, eight baseball players were tried and acquitted on charges that they had accepted bribes to throw the 1919 World Series. In recent years, many athletes have stood before the bar to answer charges ranging from drunken driving to assault to involvement with illegal drugs. And, of course, Pete Rose recently served five months in prison for tax fraud.

But no athlete of Tyson's celebrity and stature has ever faced criminal charges of such gravity as those confronting him in Judge Patricia J. Gifford's courtroom: one count of confinement (for restraining the victim on a bed), two counts of deviate sexual conduct (for digital penetration and cunnilingus) and one count of rape. Not since 1943, when actor Errol Flynn was tried on charges of statutory rape of two teenage girls, has an American entertainer of such magnitude been accused of so repugnant a crime. Flynn was acquitted.

Interest in the Tyson trial will be heightened by the fact that it will unfold during a time of heated national debate over how men treat women. That issue was raised last year from movie theaters to the floor of the U.S. Senate to an interview room at the L.A. Forum to a county courthouse in Florida. Not long after Thelma fled with Louise on the big screen, Anita Hill and Clarence Thomas squared off on the little screen at home. In the ensuing months, Magic Johnson's acknowledgment that he had tested positive for HIV prompted questions about athletes' promiscuity, and television broadcast virtually the entire Palm Beach rape trial of William Kennedy Smith, right down to the moment when the jury foreman announced Smith's acquittal. Meanwhile, Tyson was indicted by a special grand jury. At a Sept. 11 press conference following Tyson's arraignment, his promoter, Don King, bitterly attacked the alleged victim and while repeatedly using her name, declared in a classic malaprop: "There's nothing sanctimonious about [the young woman]!"

King was right. In fact, according to friends and acquaintances, nothing about Tyson's accuser suggests pious affectation of any sort. Raised in a middle-class New England suburb, she appears no less than the quintessential girl next door. Her voice is chirpy, her cadence brisk when she speaks, and she has a toothy, engaging smile that is without guile. She is a freshman at a prestigious Catholic college, and she arrived there with an exemplary record: member of the National Junior Honor Society, coach of a youth Softball team, competitor in varsity track and Softball, volunteer worker assisting the mentally retarded, Sunday School teacher and church usher. In the summer of 1990 she was one of 34 students chosen to visit the Soviet Union as part of a cultural exchange program. At the Miss Black America pageant, says fellow contestant Noemi McKenzie, the accuser, a 5'4", 95-pound jazz dancer, was the most popular contestant among the competitors.

"She was the youngest," McKenzie says. "We considered her the baby of the group. When she was around, you knew it. She was spunky. She had a presence. A lot of girls in the pageant were streetwise; she wasn't like that, and you could see it. Just a real sweet person."

The young woman's testimony as to how and why she ended up at 2 a.m. in suite 606—and precisely what happened when she got there and what she said and did after she left—will form the dramatic centerpiece of a trial that could last three weeks. Along with the accuser, limousine driver Virginia Foster, who chauffeured Tyson during his stay in Indianapolis and who drove the alleged victim to Tyson's hotel and back to her own hotel on the night in question, is regarded as the prosecution's most critical witness.

Tyson's principal defense is that the young woman consented to having sexual intercourse, but Tyson is not expected to articulate that defense himself, because he is unlikely to take the stand. In a daring gamble to head off the indictment, Tyson's lawyers permitted him to appear before the special grand jury investigating the case, hoping that he would persuade a necessary two of the six jurors to kill what is known as a true bill. But he was indicted by a vote of 5-1. If he were to take the stand, with the prosecution armed with his grand jury testimony, Tyson could come under a withering cross-examination of his story.

If Tyson has an edge going into the trial, it is that the alleged victim has already given at least five accounts of what occurred that night—to a police officer, Cynthia Jenkins, while the accuser was being treated at Methodist Hospital, some 24 hours after the alleged incident; to a chaplain, Catherine Newlin, at Methodist; to a tape recorder at police headquarters, shortly after speaking to Jenkins and Newlin; to the grand jury in a three-hour appearance; and to defense lawyers in a deposition that took some six hours. By the time Tyson's lawyer rises to grill her, she will have told the story a sixth time in front of the jury.

No matter how honest a person may be, it is impossible for anyone to give the exact same account of anything six times, much less an account of something as sudden and shocking as this ordeal would have been for her, if, in fact, it happened. According to experts on sex crimes, a rape victim at first cannot believe the rape is happening to her. Then, for hours, she cannot believe it did happen to her. Then she is expected to tell a believable, consistent story about something she cannot believe, over and over again. Of course, there is no mystery about what the defense attorney will try to do with these various accounts. He uses the inevitable inconsistencies as a foundation for this argument: How can you believe her when she keeps changing her story?

A discrepancy need not involve a flat contradiction. An omission, an addition of detail, a change in the sequence of events—each can allow room for that most welcome guest at any defense table, reasonable doubt. The crucial issue is how the alleged victim comports herself under a cross-examination designed to make her look, at best, confused or, at worst, a teller of tall tales.

Such a variety of accounts is a gold mine for any defense attorney. Tyson's good fortune is that in this case these accounts are in the hands of his chief counsel, Vincent Fuller. He is the 60-year-old senior partner in Williams & Connolly, the Washington, D.C., law firm founded by Edward Bennett Williams—the man widely regarded, until his death in 1988, as the most skilled American trial lawyer since Clarence Darrow.

Like his mentor Williams, Fuller brings to the courtroom an encyclopedic grasp of fact, nuance and law. His most celebrated victory came in 1982, when he persuaded a jury to find John Hinckley, on trial for the attempted assassination of President Reagan, not guilty by reason of insanity. Just as stunning was Fuller's defense of King in an '85 tax fraud trial. King and an associate were charged with skimming more than $1 million from King's company for their personal use. Fuller analyzed 140,000 documents, found tens of thousands of dollars in bookkeeping errors and laid the blame on King's accountants. Day after day, witness upon witness, he denuded the government's arguments that King had cheated on his taxes. Without calling a single witness of his own, he won King an acquittal.

"He will revisit the same thing time after time, and he wears out the judge," says Ronni Mann, the prosecutor in the King case. "He knows how to get things into evidence, and he knows how to keep them out. The jury heard things in the King case they never should have heard, because Fuller would not give up on anything he wanted them to hear."

Few details escape him. For example, he has filed a motion to prohibit the use of the word "victim" by the judge and prosecutors when they are referring to Tyson's accuser.

Fuller is one of those rare trial lawyers whose very presence in a courtroom changes the complexion of the place, making it his own. "When Fuller walks in, things are done at a different level," says one attorney. "The clerks, the bailiffs, the judge and everyone else will deny it, but they behave differently with a guy like Fuller around." And no one has to strain to hear him. His voice, says Joseph diGenova, the former U.S. attorney who prosecuted Hinckley, "would crack the flooring in gymnasiums."

One of the enormous advantages that Fuller has is the sheer preponderance of resources that he can bring to bear in preparing his case. Fuller likely commands $5,000 a day, and Tyson has the money to pay him and whatever other expenses are needed. At last count, at least eight lawyers were working on formulating Tyson's case. In addition to deposing more than 50 witnesses, they have learned, among other things, that 2½ years ago the alleged victim called police to her house after an altercation with her father, a domestic disturbance they conceivably would invoke in an attempt to question her emotional stability.

At Fuller's elbow will be Indiana's most successful and respected defense attorney, James Voyles, a round, charming and likable sort who is best known for having persuaded a Marion County judge, Paula Lopossa, to go easy on a convicted rapist Voyles was defending last fall. After listening to Voyles's appeal, Lopossa, for the ages, said, "I think it was obvious it was nonconsensual sex. But I don't believe it was a violent act, as most people think of rape." She then fined the rapist $5,000 and gave him two years in a work-release center.

A major difficulty facing the four Indiana prosecutors working on the Tyson case is simply keeping up with the pace and volume of defense filings. The prosecutors, like their counterparts everywhere, are feverishly trying to contend with dozens of cases. In the pretrial maneuverings, the defense has succeeded in placing the overworked prosecutors on the defensive, and the disparity in the quality of their work has been glaring. While Fuller and Voyles file papers that could be published in law reviews, the prosecution's filings are routinely late and are filled with typographical and grammatical errors, unmistakable signs of the tremendous pressure under which the prosecutors are laboring.

If the prosecution has any counterbalance at all to the efficiency and organization of Team Tyson, it is in the emotional, intense and histrionic presence of Greg Garrison, the 43-year-old hired gun that the newly elected Marion County prosecutor, Jeffrey Modisett, has brought in to try the case. A lean and wiry six-footer who wears cowboy boots and leather suspenders and combs his thick red hair straight back, Garrison looks like anything but the concert pianist he once studied to be at Indiana University's School of Music. Garrison abandoned the piano after his second year at Indiana and eventually turned to the law, but he was only switching stages on which to perform.

"He has a magical quality," says Morgan County (Ind.) Court Judge Jane Spencer Craney. "He is riveting. He is a presence." Long ago Garrison could have cashed in on his fame by defending Indiana fat cats for big fees, but he has steadfastly refused to leave all the prosecuting to young idealists fresh out of law school. He handles cases for local prosecutors on contract. In drug cases, he usually works on a contingent-fee basis, collecting 20% of the confiscated assets of those found guilty.

Like Fuller, Garrison has unshakable faith in the wisdom of the jury system, and in the Tyson trial, what the jury is allowed to see and hear is likely to prove decisive. If the central drama turns on the alleged victim's testimony, the pivotal battles between the lawyers will be joined over the issue of evidence—over what is admissible and what is not. On the afternoon before the alleged rape, Tyson attended rehearsals for the Miss Black America pageant at the Omni Severin Hotel, and his behavior there was "disrespectful and offensive," according to one contestant. By groping the women, foul-mouthing them, fondling their buttocks and rubbing up against them, Tyson "acted as if he had walked into a room full of sluts," McKenzie says. There he first met the alleged victim, who agreed to a date with him that night. Also that afternoon, during a ceremony at the Hoosier Dome, Tyson allegedly fondled the buttocks of the reigning Miss Black America, Rosie Jones, who three weeks later filed a $100 million lawsuit against him for sexual harassment.

Fuller will try to keep such damaging evidence—there are said to be videotapes of Tyson making advances on contestants—and testimony out of the trial. He no doubt will insist that Tyson's conduct at the rehearsal and at the Dome had nothing to do with what happened in his room later that night. For his part, Garrison will beat the drums to get all of that evidence admitted under Indiana's liberal res gestae rule, which permits evidence of a defendant's related activities before and after an alleged crime, referred to as a "common scheme." He will argue that Tyson's purported behavior toward the contestants is evidence of his predatory intent, a revealing prelude to what came later.

Fuller may have already shot himself in the foot on the issue of whether such evidence should be allowed. When Jones filed her suit, Fuller sought a gag order to seal all discovery materials in that case, arguing before U.S. District Judge John Martin in New York: "The proximity in time and location of the events alleged in the [Jones] complaint here and the Indiana indictment, as well as the sexual nature of both charges and the overlap in likely witnesses, result in an irremediable intertwining of this case and the Marion County criminal trial."

Garrison no doubt will find comfort in the fact that Fuller is on record in his belief that the two events are inextricably bound. The prosecution will probably succeed in obtaining a ruling from Judge Gifford to admit evidence relating to Tyson's activities at the rehearsal and at the Dome, and it is just such graphic evidence that could turn a jury against him. Not that all the evidence surrounding Tyson's stay in Indianapolis favors the accuser; a videotape reveals Tyson and the young woman smiling, chatting and flirting with one another at a pageant rehearsal.

Gifford—a cool, no-nonsense Republican who lists her membership in the Daughters of the American Revolution on her rèsumè—will be walking old, familiar ground in this trial. She worked in the Marion County prosecutor's office before becoming a judge in 1978, and she and a partner were the first women in Indiana to be put in charge of felony sex crime prosecutions. They lost just four of 52 cases during a tenure that ended only after the Republicans were swept from office.

Gifford is taking no chances that this trial be tainted. She has decided that the 12 jurors and four alternates will be sequestered in a hotel from the trial's beginning to its end. Except for brief meetings with their families on Sundays, they will have little contact with the outside world. No radio or TV. No phone calls. Incoming mail, newspapers and magazines will be censored.

In the end, when all the courtroom strategies are played out, all that will matter is what 12 ordinary people believe happened in suite 606 early on that July morning. "A trial is something that becomes greater than the sum of its parts," Garrison says.

And Tyson makes this one history.

PHOTOPAUL JORDAN/OMEGAThe prosecution is likely to focus on Tyson's alleged fondling of several beauty pageant contestants. PHOTOGARY MOOK/SIPA PRESSFuller was already much in evidence when Tyson was booked in September at the Marion County Jail. TWO PHOTOSPHIL HUBERThe complainant was driven to the Canterbury, where she was allegedly raped in this room in suite 606. PHOTOTHEO WESTENBERGEREven Garrison's house befits his image as a top hired-gun prosecutor.

HOLE YARDS PAR R1 R2 R3 R4
OUT
HOLE YARDS PAR R1 R2 R3 R4
IN
Eagle (-2)
Birdie (-1)
Bogey (+1)
Double Bogey (+2)