4.2.12 WC: 191694
Of course, the fact that they were necking and holding hands doesn't preclude the possibility that Desiree may have said no when it came to intercourse. Nor does it mean that a woman who engages in sexual foreplay may not refuse further sex at any point. Of course she may, and if the man then forces her to have sex without her consent, it is rape. But the testimony of these eyewitnesses shows three important facts: the first is that Washington was lying when she denied necking with Tyson; the second is that Tyson was telling the truth when he testified that they were necking; and third, that just moments before the hotel door closed behind them, Washington was involved in sexual foreplay with Tyson.
Despite the importance of this eyewitness testimony by three disinterested witnesses in an otherwise uncorroborated "she-said, he said" credibility contest, the trial judge adamantly refused to allow the jury to hear the evidence of the three eyewitnesses. She ruled that the prosecution—which admitted that the testimony was "pivotal" --would have been “prejudiced” by its late disclosure. This was absurd because the three witnesses had come forward before the close of the prosecutor's case—after learning that Desiree Washington had denied necking with Tyson—and well before the defense case even began. There was plenty of time for the large team of prosecutors to prepare to cross examine them, and if they needed more time, the judge could have briefly recessed the trial. In any event, surprise defense witnesses are common in criminal trials, and the Bill of Rights explicitly guarantees a criminal defendant the right to call “witnesses in his favor.” Despite this the judge denied Tyson the right to call these three pivotal witnesses. So much for the “search for truth.”
In all my years of practice and teaching criminal law, I had never heard of a case in which a judge had refused to allow a criminal defendant the right to call eye witnesses who could help establish his innocence. The law, including the law of Indiana, clearly supported Tyson’s right to do so.
It should come as no surprise, however, that this particular trial judge made such a bizarre and unprecedented ruling to exclude such relevant and exculpatory evidence. The trial judge, Patricia Gifford, who used to be a full time professional rape prosecutor, had prosecuted more than 50 rape cases. She expressed extremely strong feeling about rape, especially what has come to be called “date rape.” Indeed, she lectured the lawyers against even using the term date rape in her courtroom and refused to give the traditional date rape instruction, which requires acquittal if the jury concludes that the defendant reasonably believed the woman consented, even if she did not intend to consent.
After reading the transcript, it became clear to me that Patricia Gifford did not see her role in rape cases as being a neutral judge, but rather as another prosecutor, with a stake in the outcome. She wanted to see the most famous “rapist” in Indiana history convicted and put away. Judge Gifford made virtually every important ruling in the prosecutor’s favor, including the exclusion of those three “pivotal” witnesses who would have won the case for Tyson. She also excluded evidence—under the rape shield law—that, would have proved that Desiree Washington had a strong motive to frame Mike Tyson for rape. (More on this soon.)
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