In Florida, Trial By Media Fire

Forget for a moment such constitutional niceties as the presumption of innocence and the promise of a fair trial. Suspend your faith in due process and the rule of law. Simply as a matter of common sense, is there not rough justice in last week's prosecutorial bombshell in the William Kennedy Smith pretrial circus?

After all, the 29-year-old alleged rape victim in the Palm Beach case has had all sorts of dirt tossed her way-according to the press, she's emotionally unbalanced, she's wild, she's even a lousy driver. Indeed, some of these distractions came from the Smith defense entourage itself. So why not a little turnabout as fair play, especially when it's aimed at this lad of privilege, this nephew of Senator Joy Boy himself? What was tabloid sauce for the goose would seem just as good for the gander.

It sure must have seemed that way to Moira Lasch, the Palm Beach County assistant state attorney running the prosecution. Last week Lasch launched a nuclear strike against Smith. Her office released 76 pages of sworn accounts from three women who say Smith sexually assaulted them. The three incidents took place in 1983 and 1988 in Washington and New York, according to the statements, which were obtained under questioning by Florida authorities and not subject to cross-examination. The formal context of the release was harmless enough: Lasch filed the statements in public records at the Palm Beach Circuit Court, under rules requiring the prosecution to notify the accused that prior-act evidence may be introduced. And the relevance of the alleged prior incidents, Lasch argued, was that they showed Smith, 30, had committed acts similar to the Easter weekend rape he's now charged with.

But there was calculation to the release. Lasch made no effort to have the statements placed under seal, even though the purpose of the disclosure rule is to protect the defendant from surprise, not feed a media frenzy. Moreover, the names of the three women arrived at 4:22 p.m., eight minutes before the clerk's office closed. The prosecution says in court papers that it warned the defense and waited until the last minute to file so it could respond; the defense says it received no notice. In any event, the sensational statements were filed the next morning; the press quickly got hold of them. Since both sides are under court order not to discuss the case, the statements became the sole basis for reams of screaming headlines about Smith's allegedly rapacious past. It was only at the weekend that defense lawyers moved to prevent future disclosures they said would further damage Smith's ability to get a fair trial. At the same time the defense asked that Lasch's office be punished for its "cynical attempt to sandbag" Smith.

The prosecutors say the statements of the three women directly bear on Smith's guilt. Intuitively that makes sense. Under the law of evidence, though, it will be tough to convince a judge that the statements aren't so prejudicial that they outweigh their factual value. "It's not that it's irrelevant," says Stephen Gillers, a New York University law professor. "A jury will be overwhelmed by that information." Only if the prosecution can prove that the alleged earlier acts established a signature or unique style on Smith's part-for example, similar pickup lines in a bar could they be admissible. It would not be enough to prove that Smith merely was a bad person who had a "propensity" to attack women, says Terence Anderson, a University of Miami law professor. Adding to the prosecution's burden is the fact that Smith has only been accused by the three women, not charged.

More likely than their admission as "signature" evidence, the stories of the three women could allow the prosecution to impeach the credibility of Smith should he take the stand or make his character relevant through the testimony of other witnesses. Smith could not suggest that he's always had a good relationship with women without risking the prosecution asking about the three accusations. Some evidence experts say that Lasch's purpose last week was to force Smith's lawyers to narrow the range of his testimony, keep him off the stand altogether or get him to accept a plea bargain. The defense lawyers themselves don't buy that. Lasch's goal, they insinuated in court papers, had nothing to do with evidentiary hardball but was designed simply to "poison the jury pool."

If that's correct, it's grossly unethical. Smith's chances for a fair hearing may have been irreparably harmed, even if the judge grants the defense's motion to postpone the trial until November. Can jurors be found in Palm Beach or any other Florida locale who won't be influenced by the stories of Smith's "past"? Prejudicial pretrial publicity is the refrain of all defense lawyers and it's usually overstated, ignoring as it does the public's short memory and the good faith that jurors can bring. But the Smith case is different, both because of the extent of publicity and the nature of the prejudicial disclosure.

Maybe the court of public opinion is becoming more important than the court of law. Maybe Gillers's lament is where justice is headed: skip the courtroom, substitute flacks for lawyers and actually try the case in the media. Put the proceedings on TV and let viewers call in for 1-900-CONVICT or 1-900-NO-GUILT. It would be quicker, cheaper-and make for great television. And would it be so different from what we already have?