It turned out not to be close. The accuser was credible on the stand, but no more so than the accused last Tuesday. Smith’s account of what happened on the lawn last Easter weekend at the Kennedy compound in Palm Beach was presented simply and efficiently, even if it lacked the emotive power of his accuser. And his performance on cross-examination was so strong that the defense chose to drop a major chunk of its case. “We were concerned about overtrying our case,” co-counsel Mark Seiden told NEWSWEEK. “You didn’t want to put the jury to sleep.” The six jurors didn’t get the chance. By Wednesday afternoon, both sides had summed up: prosecutor Moira Lasch in her Sahara-dry style, defender Roy Black with all the folksy earnestness that CNN audiences came to love.
After a mere 77 minutes of deliberation the jurors returned with their acquittal. An irascible Lupo warned against courtroom demonstrations, but Black and Smith ignored her and embraced. Several of the jurors wept. Lasch was ice. Later, beside his mother in front of the courthouse, Smith glowed. “My life was in their hands and I’m so grateful for the job they did,” he said. “I have an enormous debt to the system and to God.” Smith plans to begin his medical residency next month in Albuquerque. In a statement, the accuser said she prayed her decision to press charges “was not in vain.” In interviews, two jurors said her version didn’t ring true.
Who knows, though, what they might have thought if they had had the testimony of those three other women? Most legal experts agree that Lupo was legally correct to exclude their stories. It is a centuries-old tradition in Anglo-American law that a criminal defendant need answer only to the current charge. Prior bad acts, whether or not resulting in convictions, aren’t allowed into evidence. The principle (called the Williams Rule in Florida) is not one of logic, but policy. “A quarrelsome defendant is more likely to start a quarrel,” Judge Benjamin Cardozo wrote in 1930. “The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime.” Says New York University law professor Holly Maguigan: “The human experience says that where there’s smoke, there’s fire even if there isn’t.”
Yet the law recognizes exceptions, typically when a defendant’s prior acts demonstrate remarkable, distinctive similarity-a signature-to the current charge. Robbing a bank before isn’t enough, for example, unless the robber used the same Groucho costume or same stickup line with the teller. In the Smith trial, Lasch argued that the three other women weren’t merely charging that they were attacked by Smith; among other similarities, she said, the women were all brunettes who told of a Jekyll-and-Hyde encounter with Smith. The judge said that wasn’t enough. NYU law professor Stephen Gillers suggests the rule needs rethinking. “In light of what we’re learning about date rape, which usually comes down to a credibility contest, it may be time to permit prosecutors more latitude.”
At the core of the Williams Rule seems to be a lack of confidence in juries, that they can’t be trusted with information that any other fact finder would insist on. In the Smith prosecution, there obviously were risks to letting the three other women testify. Theirs were pure accusations; they never filed charges, coming forward only after they heard of the Florida woman’s story. But the defense would be certain to make this point. Moreover, the defense would have the chance to cross-examine. The trial would also be more time consuming, because in effect four trials would be taking place. Still, that hardly is a reason to bar potentially valuable information. “Because there is so much ambiguity in these kinds of cases,” says Brooklyn law professor Liz Schneider, “understanding that there was some pattern in the defendant’s past conduct may be relevant to the jury.” Schneider adds that a judge could give instructions emphasizing the risks of the extra testimony.
Rape has always troubled the legal process. Before the 1950s, an alleged victim had to prove “utmost” resistance. Then it was “reasonable” resistance. Now, no state requires such a showing-though it helps. Accusers once had to provide corroborating evidence or eyewitnesses, which usually was impossible; that requirement has been eliminated. Improving rape law, by relaxing the Williams Rule in the special case of date rape, could be the next reform. In the hands of a careless judge, that could endanger defendants. But at the same time, it would reflect new faith in jurors, who, as the Smith verdict showed, are still a wondrous thing.
Though William Kennedy Smith was acquitted, the jury at large found prosecutor Moira Lasch guilty on multiple counts. What the future holds for the Palm Beach players:
With the courtissued “not-guilty form” in his pocket, Smith can resume his medical career. His lawyers aren’t likely to bring a civil lawsuit against his accuser but may try to recover some of his trial costs from the state.
Kennedy’s accuser has also kept open the option of a civil suit. Her lawyer says she may ultimately get involved in rape counseling.
The victory secured his place in the front lines of the criminal-defense bar. One not-too-swift move: after eviscerating best friend Anne Mercer for her appearance on “A Current Affair,” Black himself turned up on half a dozen talk shows.
The Palm Beach state attorney, David Bludworth, defended prosecutor Lasch against “Monday-morning quarterbacks and so-called ’trial experts’.” But she may now be headed back to the obscurity she came from-and which her many critics believe she deserved.
In a sense, Teddy was acquitted, too: he came across as mature, sober and statesmanlike. The Palm Beach performance may finally let him shift the spotlight from his personal life back to issues he cares about.
The trial put Court TV on the map. The new network provided gavel-to-gavel coverage, which left CNN open to criticism for its frequent and often ill-timed commercials. Judge Wapner, move over.
