Taking the Stand

by Alan Dershowitz

  Not only was the jury misinformed about Desiree Washington’s general sexual proclivities, they were also denied the most crucial eyewitness testimony of what she was doing just minutes before she went to Tyson’s hotel room. She denied necking with Tyson in the limo on the way to the hotel. Indeed, she testified that she rebuffed his attempt to kiss her and “jumped back.” Tyson’s testimony was precisely the opposite. He swore that when he kissed her, “she kissed me,” and that on the drive to his hotel, he and Washington were “kissing, touching.” The jury obviously believed Desiree’s testimony because Tyson’s was uncorroborated and self-serving.

  But it turns out that there were three eyewitnesses—disinterested outsiders who happened to be in front of the hotel when the limo pulled up—who saw what was going on inside and outside the limo just before Tyson and Washington left it to go to his hotel room. They saw them necking—“they were all over each other”—and holding hands on the way to the hotel. (Desiree denied both necking and holding hands.)

  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: that Washington was lying when she denied necking with Tyson; that Tyson was telling the truth when he testified that they were necking; and 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 eyewitnesses. She ruled that the prosecution—which admitted that the testimony was “pivotal”—would have been “prejudiced” by its late disclosure. This was absurd: 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. Moreover, the defense had brought those new witnesses to the attention of the court as soon as they could check that the limo had windows that the witnesses could see through. 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.”29 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 refused to allow a criminal defendant the right to call eyewitnesses who could help establish his innocence. The law, including the law of Indiana, clearly supported Tyson’s right to do so. It was a clear reversible error for the court to suppress these truthful witnesses.

  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 fifty rape cases. She expressed extremely strong feelings 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 courtroom30 and refused to give the traditional date rape instruction, which requires acquittal if the jury concludes that the defendant reasonably believed the woman had consented, even if she did not intend to consent.

  After I had read 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 being 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.

  In light of Judge Gifford’s attitudes and professional background in regard to rape, it might be wondered how the prosecution got so lucky as to have her as the judge in the Tyson case. Luck, however, played no part in the selection. Under Indianapolis law and practice, the prosecutor was able to pick the judge who would preside over the Tyson case. I am aware of no other place in the free world where a prosecutor gets to pick the judge. And the prosecutor picked wisely, if not fairly.

  Several distinguished commentators—including Indiana’s leading authority on criminal procedure—concluded that the trial judge committed a serious legal error by excluding those three crucial witnesses. Articles in the American Lawyer and the New York Law Journal reached the same conclusion, as did most of the lawyers and law professors with whom I conferred.

  Despite the strong issues that she knew would be presented on appeal, Judge Gifford denied Tyson bail pending appeal, accepting the prosecutor’s silly argument that this celebrity defendant would somehow sneak away and flee to a country with no extradition treaty. She also ruled that all the appellate issues would be “frivolous”—that is, so unlikely to prevail that it would be unethical for a lawyer even to present them! (We, of course, ignored this preposterous conclusion and presented these “frivolous” arguments, which several appellate judges found compelling.) Finally, as if to prove she was an advocate rather than a judge, she actively lobbied in the media against reversal of the conviction, convening a press conference and, according to news accounts, “express[ing] some worries about having her ruling overturned, especially in an internationally publicized case in which prosecution costs alone reached $150,000.” She commented on “the enormousness of the reversal of a case that would have to be tried again like this.” We were advised by several local lawyers that she also personally lobbied the appellate judges against reversing the conviction. These actions, if they occurred, would be unethical, and in violation of the Code of Judicial Conduct. They could have resulted in her being removed from the bench, but instead she was praised by the local media. Apparently lobbying by a judge is acceptable in Indiana, if the defendant is a despised out-of-stater.

  The case was a close one at trial. Judge Gifford’s one-sided rulings shifted the balance against Tyson in what was otherwise a difficult prosecution. Even without all this exculpatory evidence, the initial jury vote was six to six. Eventually, the six who voted for conviction were able to persuade the six who voted for acquittal that there was no reason to disbelieve Desiree Washington’s account. But that account, especially when reviewed against the background of the information that was kept hidden and is now known, is extremely unconvincing.

  What then was Desiree Washington’s account of what happened that night?

  Although Desiree Washington insisted she had no interest in having sex with Tyson, she acknowledged that she led him on and that she acted in the way a groupie would behave. The director of the Miss Black America Pageant, in which Desiree was a contestant, even criticized her for behaving like a “groupie.” She sat in Tyson’s lap and hugged him during the pageant rehearsal, when they first met. She showed him a picture of herself in a bathing suit, gave him her hotel room number, and agreed to go out with him. She took his call at one-forty-five in the morning and agreed to come down to meet him in his limo. She then went into her bathroom and put on a panty liner to keep her expensive borrowed dress from becoming stained by the beginning of her menstrual flow during the partying and sightseeing she said she expected to do over the next several hours. She willingly accompanied Tyson to his hotel room at two o’clock in the morning, sat with him on his bed, and then went into his bathroom and removed her panty liner without replacing it. How did she expect to prevent her borrowed $300 outfit from becoming stained over the next several hours of anticipated
partying and sightseeing? The most plausible explanation for the removal and nonreplacement of the panty liner was that it was done in anticipation of consensual sex.

  Moreover, if she did not want to have sex, she could easily have locked herself in the bathroom and called for help from the bathroom phone. The bathroom had a working lock and a phone. Instead, she willingly came out of the bathroom, passed a door leading to the outside corridor, and went back to Tyson’s bedroom, where they had sex on the bed.

  According to Washington’s own testimony, Tyson asked her during their sexual encounter whether she wanted to “get on top” and she responded “yeah,” and proceeded to get on top—not the usual position for a rape victim!

  Mike Tyson had every reason to believe that Desiree was just another groupie looking for sex with a celebrity athlete. The “rules” of groupie sex are well known. The groupies want sex with superstars in exchange for bragging rights that they slept with the “high-scorer,” the “champ,” or the “star.” Some, like Washington, hope that the star will fall for them and make them rich and famous. Indeed, several other contestants testified that after meeting Mike Tyson, Desiree bragged that she was going out with him because “this is Mike Tyson. He’s got a lot of money. He’s dumb. You see what Robin Givens got out of him.” She told a friend that “Robin Givens had him. I can have him too.… He’s dumb anyway.” To her roommate, she said: “Mike doesn’t have to know how to speak well. He’ll make all the money and I’ll do the talking.”

  Tyson testified that when he first asked her out—in front of a witness—Desiree suggested a movie or dinner. But he said no: “That’s not what I [have] in mind.… I want you. I want to fuck you.” A witness—Johnny Gill, a singer—confirmed under oath that Tyson said, “I want to fuck.” Gill later asked Tyson how he could be so straightforward with women, and Tyson explained that he was used to saying what was on his mind.

  Desiree Washington knew full well that Mike wanted to have sex when she went to his hotel room. Yet she testified that she had no idea that Tyson had any interest in having sex. How any rational person could believe that is mind-boggling. She may have been disappointed and hurt when he later treated her like a groupie rather than as a continuing romantic interest. She realized that she could not exploit his sexual interest in her the way Robin Givens had done, and she was afraid of the reaction of her family when it became known that she had indulged in a one-night stand with Tyson. A friend of hers told the press that Desiree “only cried rape” after her furious father found out she’d had sex with Tyson.

  Our investigation revealed that she had previously engaged in consensual sex with the high school football hero, and when her father found out about it and threatened to beat her, she lied to her father and told him she had been raped, falsely accusing the football player.

  Our investigation also uncovered that Desiree’s father had a history of violence toward her. Her mother had had Desiree’s father arrested and charged with assault and battery against Desiree. “In her account,” reported in the media, “Desiree alleged to the police that her father ‘hit me and pushed my head under the sink.… He continued slamming my head into the wall and the floor. I freed myself and reached for a knife to protect myself.’ ” A sworn statement by her mother reportedly said that her husband “flew off the handle” when Desiree told him “she had lost her virginity” well before she ever met Mike Tyson.

  In order to avoid his fury once again, this time for having consensual sex with Tyson, Desiree apparently decided to cry rape once again. At first, she said that Tyson had “tried” to rape her. She initially denied having sex with him. Then she said they had sex “on the floor.” She told the female chaplain at the hospital that there had been some “participation” and consensual physical involvement on her part before he forced her. Finally, she settled on the account she gave at trial: that he had raped her on the bed with no prior consensual involvement on her part.

  No one except Tyson and Washington knows exactly what went on behind the closed doors of his hotel room. There was no videotape. Nor was there any physical evidence to corroborate Washington’s story. Indeed, the available physical evidence completely undercut her story. She was wearing a sequin-studded outfit, which she claims Tyson “yanked” off her as he “slammed [her] down on the bed.” If that had happened, there would have been sequins all over the hotel room. Indeed, at the trial, when the dress was gingerly introduced into evidence, sequins fell off in the courtroom. But only one sequin was found in Tyson’s hotel room after the allegedly forcible rape.

  Nor were any bruises—external or internal—found on Ms. Washington that were consistent with her account of how Tyson had “forced” her to have sex. She testified that Tyson got on top of her, held her down with his forearm across the chest, and forced himself inside her.31

  Had the 230-pound, muscular Tyson done that to the 105-pound Washington, there would have been bruises, welts, contusions, and even broken ribs. Yet there was not even the slightest bruise on Washington’s body when she went to the hospital just hours after the sexual encounter. The doctors found only two tiny microscopic abrasions, which, according to leading experts, are perfectly consistent with consensual sex—especially if the man has a larger-than-average penis or the woman has a smaller-than-average vagina. Such tiny abrasions are also more likely when two people have consensual sex with each other for the first time and are not used to each other’s sexual movements. Mike Tyson’s account of what occurred, on the other hand, was entirely consistent with the physical evidence. And it would have been corroborated had the judge not excluded the three objective eyewitnesses who saw the couple necking and kissing just moments before they went to his hotel room.

  Despite the absence of physical evidence to corroborate Desiree Washington’s story, the jury eventually believed her because there was no compelling reason to disbelieve the testimony of a young, religious, sexually inexperienced girl who had no possible motive to put herself through the agony of a rape trial. But it turns out that there were very good reasons for not believing her. As one juror subsequently put it: “She was very, very credible [at the trial], but now she’s not credible at all. Right now, I wouldn’t believe anything she said. I would sign an affidavit that if we had known about the money, I couldn’t have voted to convict him. Mike Tyson deserves a new trial.”

  In light of the numerous errors made by Judge Gifford at the trial, this should have been the easiest appeal I ever argued. The law, the new evidence, and the judicial and prosecutorial errors made at trial clearly required a reversal of the conviction and a new trial.

  Legal experts who read our brief and heard the oral argument concluded that we should win the appeal. The law was on our side. The facts were on our side. And our briefs and arguments were much stronger than those of our opponents. As the legal expert who reported on the trial and appeal for USA Today put it after watching the appellate argument:

  Mike Tyson had his best day in court Monday.… In spite of a trial record filled with mistakes, omissions and elementary errors by the fighter’s ex-defense team, Dershowitz and colleagues argued that Tyson’s conviction must be set aside.… Tyson got his money’s worth Monday.… Reversal of a criminal conviction by a jury is rare, but Tyson’s attorneys might have successfully pinpointed the crucial issues that will free him.

  I am convinced—and I think most observers were convinced—that if Tyson had gotten a second trial with all the new evidence before the jury, he would have quickly been acquitted. But this was Indiana. They had a trophy in Tyson. And they had a trial judge so determined to prevent a new trial that would have embarrassed her and freed Tyson that she unethically held a press conference and may have improperly lobbied the appellate judges.

  The conviction was eventually affirmed on a 2–2 tie vote by the Indiana Supreme Court, with the chief justice disqualifying himself from participation in the decision on a phony pretext. He had sent his wife to speak to me during a Yale Law School reu
nion event. I was conversing with the president of George Washington University, when a woman came up to me and said, “Your New York style won’t work in Indiana.” I didn’t know who she was, but as soon as she identified herself as the wife of the Indiana chief justice, I moved away, saying, “We can’t talk.” The chief justice subsequently used this contrived encounter as an excuse to disqualify himself.32 At first he wouldn’t admit it, but after I provided an affidavit from the president of George Washington University, the chief justice reluctantly acknowledged the ground on which he had recused himself. His recusal was particularly hypocritical in light of the fact that none of the judges who were allegedly lobbied by the trial judge to affirm the conviction recused themselves. I believe that the real reason the chief judge got out of the case was that his own previous decisions would have required him to vote for reversal, and if he did, the public would have been reminded that he himself had been accused by a fellow judge of sexual impropriety with a law clerk.

  In my half century of practicing law throughout the world, I have never encountered a more thoroughly corrupt legal system than I did in 1992 in Indiana, and a less fair trial and appeal than those accorded Mike Tyson. If hard cases make bad law,33 then the Tyson case proves that unpopular celebrity defendants often receive bad justice. If Mike Tyson had not been a world famous boxer, with a reputation for toughness, and if he had had a zealous trial lawyer experienced in rape cases, and a fair judge, he never would have been convicted of a rape he didn’t commit. And if he had been convicted, his conviction would have been reversed. The deck was stacked against Tyson and he paid a heavy price—the loss of his career, and several years of hard prison time—for what I’m convinced was a consensual one-night stand with a young woman who apparently regretted giving her consent and then decided to exploit it for money. Eventually, she got her money—a large amount—despite her sworn testimony that she wasn’t interested in receiving any payment.