Case No. 91-5482 Comes To Trial
It won't be quite as momentous as the Clarence Thomas-Anita Hill hearings, but it promises to be just as lurid. After eight months of legal haggling and journalistic theater, this year's Trial of the Century is finally scheduled to begin. At stake in the William Kennedy Smith rape case is the credibility of one woman and the liberty of one man. Is she telling the truth about what happened that night at the Kennedy waterfront compound in Palm Beach? Or is he the victim of a vicious lie? A classic courtroom dilemma, but one that has been overtaken, somewhat disingenuously, by Bigger Questions: Will this be the beginning of the end for Uncle Ted? Might this change the way American society views date rape? Either way, Case No. 91-5482-the trial of the State of Florida v. William Kennedy Smith-will be the most-watched legal proceeding in American history. The Courtroom Television Network will cover it gavel to gavel on cable (except for commercials), providing feeds to CNN, the regular networks and any other stations requesting it. Former CBS correspondent Fred Graham will handle play by play; showboat defense lawyer F. Lee Bailey will do commentary.
It promises to be both high drama and soporific drudgery. Unlike the brief Senate hearings in October for Thomas and Hill, the Smith trial will be a three-weeklong morass of minutiae, broken up only by the occasional spectacular bursts of testimony. Sound and picture quality will seem primitive, compared with the scenes played out on "L.A. Law" and "The People's Court." That's because the drab West Palm Beach courtroom isn't a wellequipped Hollywood stage. There will be but one camera and three microphones. Close-ups of the six jurors (along with three alternates) won't be permitted. The face of the alleged victim will be electronically blurred; a 20-second delay will allow the TV censor to drop her name.
The geography of the courtroom will put Judge Mary Lupo up front and in the center, with both the witness box and the jury to the left. In the small gallery are expected Smith's mother, Jean, and two other family members. Lupo, the rubber-faced jurist who by the random draw of a poker chip will conduct her first rape trial, already has shown herself to be restrained and judicious, if not always quick enough to rein in counsel. Soon she maybe as recognizable as Judge Wapner.
Facing Lupo will be tables for prosecution and defense. Lead prosecutor Moira Lasch has been overtly hostile to both Lupo and the defense team. At one point, she demanded, unsuccessfully, that the judge remove herself from the case because of "negative facial expressions"; during jury selection, Lasch tried to compel defense lawyers to call their client "Mr. Smith" rather than the softer "Will." The lead defender is Roy (The Professor) Black, known for his gentle, folksy style. He has been most critical of the publicity in the case, comparing it to the Lindbergh babykidnapping trial in 1935. Beside Black is the more aggressive Mark Schnapp, a former federal prosecutor in Miami who helped make the indictment against Manuel Noriega. (Black, Schnapp and the entire defense team of investigators and experts will eventually run up a tab of nearly $1 million, which Smith has said he will pay himself.)
After a jury is impaneled--it will be sequestered for the duration--and after opening statements are delivered, the prosecution will present its version of the events of March 30. The case, obviously, pivots on the testimony of the alleged victim (whose name continues to be kept secret by NEWSWEEK and most news organizations). Whether she leads off the prosecution's presentation or takes the stand later, her account will have to be so persuasive that no juror has a reasonable doubt of Smith's guilt. As in virtually all date-rape accusations, the difficulty is that there are neither eyewitnesses nor strong physical evidence. Her word against his, with him getting the benefit of the doubt. With those constraints, it will take a bold jury to send a well-groomed young doctor to jail, whatever his name.
Since Smith hasn't denied that he had sexual relations with the woman, her main task will be to convince the jury she gave Smith no reason to think she was consenting. She is expected to tell the story of a young woman just out one evening looking for a nice man to meet. But what she was wearing, what she was doing at the bar, how she spoke to Smith-all these may prompt questioning. She will describe the alleged assault on the lawn, and Smith later telling her, "They'll never believe you." The defense's cross--examination of her-especially on the extent of consensual sex with Smith before intercourse--will be critical in setting up its own case; Black is expected to argue that the two had oral sex before the alleged assault. Various witnesses-friends, detectives, doctors, a rape counselor, and possibly her mother--will offer a corroborative tour of the aftereffects. They will show that at least in her own mind she believed that Smith had raped her. The friends will say that she phoned minutes after the rape, that she was visibly shaken when they arrived to pick her up at the compound and that she called a rape hot line several hours later. The prosecution will also call a meteorologist to confirm it was a windy night with high surf, which would muffle cries; forensic specialists to describe her bruises, and a DNA expert from the FBI to certify that Smith's sperm was found in her vagina (though the defense has never disputed this). Next to the alleged victim, the most dramatic witness could be Ted Kennedy, foreed to testify about his and Smith's drinking activities that night at Au Bar, where Smith met his date. Or the senator might not testify at all.
Defense strategy, of course, will depend on how successfully Lasch makes her case. Black's key decision will be whether Smith takes the stand. If he does, his task will be to convince the jury that the woman is lying or at least mistaken. In pretrial arguments, Black offered a glimpse of his position--that Smith and the woman argued after consensual sex, and that she took property from the Kennedy estate as revenge rather than evidence. Other than coming across as an arrogant lad of privilege, Smith's biggest risk is even hinting at a good history with women. Should he slip up that way during cross-examination, he will open the door for the prosecution to call to the stand three women who will say that Smith sexually assaulted them in Washington and New York in the '80s. Those allegations were made public by the prosecution in July, but are unlikely to be heard by the jury during the prosecution's direct case.
If Smith declines to testify, it will presumably be because Black decides the woman wasn't compelling. Either way, the defense is expected to call, among others, Smith's cousin Patrick Kennedy (the senator's son), who will say he saw Smith leave the beach alone. Patrick Barry, a Pace University law student and family friend staying at the house that weekend, will testify he had looked out his window and seen two people lying next to each other, and that he heard no screaming. There will also be the defense's own trove of experts on acoustics, weather, forensics (one doctor will discuss if the woman could have been raped by a "partially erect" penis, as she claims) and rangeland economics (a professor will dispute that two blades of grass found in the woman's underwear came from the Kennedy lawn). Physical evidence will include the woman's undamaged bra and panties, which the defense will say are inconsistent with a rape struggle. Lupo has ruled against defense efforts to introduce evidence of the alleged victim's sexual, psychological or medical history prior to March 30, except for the alleged child abuse she suffered.
Is all this what James Madison and friends had in mind when they wrote the First and Sixth Amendments? Steven Brill, the president of Court TV, says his network provides a public service. "If you believe in a democracy based on the rule of law," he says, "then the best thing is to have people who have an understanding of this critical branch of the government--a branch they never saw until we came along."
Sounds earnest enough, yet hasn't television contributed mightily to the carnival that this case has become? Unintrusive cameras surely belong in the courtroom every bit as much as unintrusive sketch artists and courthouse reporters. A free press dictates that and the guarantee of a fair trial precludes it only in the rarest of sensitive prosecutions. But the requiremerits of constitutional law don't necessarily make for the wonderful education that Brill preaches. The promise of televised trials offering anything more than public spectacle seems remote indeed.
Pieced together from witnesses' sketchy, often inconsistent testimony is one possible chronology of events during the early hours of March 30:
After driving Smith to the Kennedy estate, the alleged victim agrees to take a walk on the beach, and leaves her car parked at the side of the house.
Ted Kennedy, his son Patrick and guest Michele Cassone are sitting by the seawall, chatting and drinking wine.
Smith and the woman stroll to the beach; they talk and kiss.
The senator, Patrick Kennedy and Cassone return to the house; the younger two grab a blanket and head to the beach.
Smith invites the woman for a swim. When he takes off his clothes, the woman says, she decides to leave. Smith allegedly trips her at the top of the stairs.
The woman runs across the lawn; by the poolside, she says, Smith tackles her again and rapes her.
The woman runs into the house and, she says, hides behind a water cooler near the kitchen. Spying a portable phone, she calls friend Anne Mercer to come pick her up.
Smith and the woman talk in the den. She says Smith denies he raped her, and that no one will believe her if she says so.
Mercer and friend Chuck Desiderio arrive. They follow the alleged victim home as she drives her own car.
SPENCER REISS
The 1989 Mercury station wagon that drops him off at the courthouse each day is suitably familial. The new black Lab puppy that accompanies him on morning walks along the beach has made for wholesome-looking photo ops. A trimmed-down, loosenedup William Kennedy Smith is even yukking it up with reporters. He recently offered a deadpan answer to a question about being called "Will" Kennedy by defense attorney Roy Black. "I want to clarify this for everybody," said Smith. "My name is Jerry Rivers [once rumored to be trash-TV king Geraldo Rivera's real name]. This is my mother, Mrs. Rivers. You can call me Jerry."
Smith's press-friendly behavior has been an exception rather than a rule. The pretrial strategy devised by his family has been strictly low profile. Hunkered down at the estate where authorities say Smith raped a 30-year-old woman in the early hours of last March 30, the Kennedy clan has thrown a million-dollar cocoon around its young defendant. One room has been converted to an office for a legal team of four lawyers, three jury-selection experts and a private investigator. Twenty-four-hour security wanders the grounds to shoo away reporters and call police when tabloid photographers pass too low in their choppers. The family has hired former New York Times reporter and Kennedy White House spokeswoman Barbara Gamarekian to help deal with the surge of press.
Family members have rallied to Smith's side as well. Mother Jean Smith who has reportedly imposed a dating and drinking ban on young Kennedys-has taken up permanent station, as has sister Amanda. They have been joined by a rotating complement of other relatives. Uncle Sargent Shriver was visiting from Washington last month. Cousin John Kennedy Jr. recently sat through two days of jury selection. One family friend said that if Smith chose to put out the word, all of his 28 cousins would come to Palm Beach as a show of support. "They've all expressed complete support," the friend said. Still, there are some notable noshows. Jacqueline Onassis's spokeswoman says flatly that she will not be at the trial. Smith himself acknowledged the burden he has thrust on a family that has endured a history of public ordeals. "I'm the one who's on trial," Smith said outside the courthouse last month, "but it's difficult not to feel sometimes that my family is on trial for me."
The woman who alleges that Smith is a rapist has all but gone underground. Her only formal appearance was in mid-October, when she was whisked through the underground garage of the Palm Beach Police Department by attorneys to begin three days of depositions. She and her 2-year-old daughter spend much of their time at her stepfather's home behind the walls of a private golf-course development in nearby Jupiter. The few visitors include her rape-crisis counselor. Like Smith, she has endured the press pack in full pursuit. Photographers have staked her out and even chased her car. Her lawyers confirm that they received-and rejected-a $500,000 offer for her story from Paramount Pictures. No one has been immune from the notoriety. Judge Mary Lupo receives a stream of oddball fan mail, from chain letters to requests for signed photographs.
It's doubtful that either side has gained any leverage from the pretrial hysteria. A potential juror summed it up last month when one of Smith's attorneys asked him who had been hurt the most by the publicity. "Whichever is telling the truth," he said.
