Down For The Count: A Lawyer’s Look At The Mike Tyson Rape Trial
In the aftermath of the former heavyweight champ’s conviction, a legal expert and courtroom observer wrote a book that provided a blow-by-blow breakdown of the proceedings, excerpted in Indianapolis Monthly in 1992.
When former Indianapolis defense attorney Mark Shaw became chairman of the media committee for the Mike Tyson trial, he gained a front-row seat for the hottest legal battle of 1992. Positioned just left of the judge, not 4 feet from Tyson himself, he observed firsthand the testimony of more than 40 witnesses, the reactions of jurors, and the strategies and performances of the defense and the prosecution. He also commented on the trial for CNN, ESPN, and USA Today.
After the trial, he was ready to draw some conclusions. Shaw, an entertainment and sports attorney and writer/journalist, offered the following excerpt from his book Down For The Count, documenting what he and co-author Charley Steiner, an ESPN SportsCenter anchor, consider the key courtroom errors that helped land Tyson in prison. They asserted that his case was mishandled, citing a jury-selection process that allowed a conservative ex-Marine to become foreman, a defense “strategy” of making Tyson look as bad as possible, and a disastrous decision to allow the defendant to testify at the grand jury hearing, the trial, and his sentencing. On the one-year anniversary of the boxer’s fateful night at the Canterbury Hotel, Indianapolis Monthly’s July 1992 issue presented their opinion of what went wrong, and why the ex-champ couldn’t beat the rap.
PRELUDE TO DISASTER
Ex-heavyweight boxing champion Mike Tyson faced 23 chances for disaster when he landed at Indianapolis International Airport on July 17, 1991. That’s because 23 beautiful and talented women had already descended on the city to compete in the 1991 Miss Black America Pageant. When Tyson entered a rehearsal hall at the Omni Hotel on July 18, the contestants immediately surrounded him. After pageant promoters asked Tyson to sing a rap song for a video, fate brought him in contact with an 18-year-old beauty from Coventry, Rhode Island, named Desiree Washington. He hugged her, then appeared with her in the video. When Tyson asked her out and she gave him her hotel room phone number, the game began.
Two months later, Tyson was indicted by a Marion County grand jury on one count of rape, two counts of criminal deviate conduct, and one count of criminal confinement—charges that carried a maximum sentence of 63 years. His arraignment on September 11 set the stage for one of the most publicized legal battles in modern history. On the heels of the Clarence Thomas/Anita Hill confrontation and the William Kennedy Smith date-rape trial, the proceedings would attract more than 400 broadcasters and reporters from the United States and 13 foreign countries. Tyson was represented by Vincent Fuller, a well-known defense lawyer from the prestigious Williams and Connolly law firm of Washington, D.C.; Fuller reportedly earned $5,000 per day. The state of Indiana countered with special prosecutor Greg Garrison, a fiery, red-haired trial lawyer who hadn’t lost a case since 1973.
Promoter Don King’s decision to hire the 60-year-old Fuller—whom the East Coast media characterized as a tough, no-nonsense attorney—sent shock waves through the Marion County prosecutor’s office. Tom Green, a well-known D.C. lawyer, called Fuller “one of the most skillful and respected defense attorneys not only in Washington, but in the country.”
Against such intimidating credentials, prosecutor Jeff Modisett and his hand-picked prosecution team of Garrison and Barb Trathen knew they faced a dogfight—especially when Fuller hired respected Indianapolis attorney James Voyles to assist him. Coupled with Modisett’ s belief that Tyson’s celebrity status helped the boxer’s cause—and that date-rape convictions prove difficult under any circumstances—most observers thought the jury would acquit the ex-champ in less than the 77 minutes required for William Kennedy Smith. But from the moment Fuller allowed Tyson to appear before the grand jury in August, the defense team embarked on a game plan filled with ill-fated decisions and questionable strategies. Review of the trial record indicates that at least 15 critical mistakes led directly to Tyson’s conviction.
Foremost was the choice for defense counsel. While the famous Fuller seemed to give Tyson an imposing advantage, his background made him an illogical choice. Fuller defended King in a Philadelphia tax-evasion case. King apparently thought Fuller pulled off a miracle in winning an acquittal, so when Tyson was indicted, he summoned his savior to the fray.
SETTING THE STAGE
At 9:19 a.m., on January 27, 1992, Marion County Criminal Court Judge Patricia Gifford said the magic words: “State of Indiana vs. Michael G. Tyson, cause number 49G049109CF116245,” and the battle was on. The trial promised to be unusually graphic, since the ex-champ was charged with sexual acts not usually discussed in everyday conversation, including oral sex and the use of the finger to stimulate arousal. It could all be very embarrassing to both Tyson and Washington.
One wonders what the prospective jurors thought of all this as they sat waiting to be questioned. All of them, though they tried to avoid eye contact with Tyson, literally gawked at him when he wasn’t looking.
Tyson himself looked as if he wondered where the hell he was. He sat, as if in a daze, behind his counsel, doodling on a pad of paper as he watched proceedings that could take away his freedom and destroy his career.
For two-and-half laborious days, the judge and the attorneys asked question after question of the potential jurors, trying somehow to determine their sensibilities. One man was forced to admit to imminent bankruptcy; another revealed that his wife was raped by a black stranger prior to their marriage. One admitted that many of his coworkers would describe him as “hateful”; another said he had to attend counseling classes because of an arrest. Most, however, said they would not be embarrassed to discuss female genitals or vulgar language if need be.
A telling moment occurred during this process, as Fuller and the other defense lawyers stood in a circle around a table covered with juror questionnaires, looking uncertain. Upon observing the confusion, a Marion County deputy sheriff commented, “Too many cooks.” Indeed, it appeared from courtroom observations that the highly trained professionals used a helter-skelter, What do you think? What do you think? approach in picking the jury.
While the selection process is often a crapshoot, Fuller and company’s choices proved costly. Without the active participation of Voyles or a jury selection expert (as in the William Kennedy Smith trial), the lawyers seemed to guess at who might be pro- and anti-prosecution. Nowhere was this mistake more glaring than in the decision to leave juror No. 9 unchallenged. This ex-Marine stuck out like a land mine as a potential foe for the defense, both by his background and by his conservative responses during questioning.
Leaving this man—the only one who took notes—on the jury reminded trial experts of famed attorney F. Lee Bailey’s disastrous decision to leave an Air Force colonel on the jury that convicted Patty Hearst. That military man ended up controlling deliberations, as would No. 9, who exhibited his ability to take command by passing out breath mints to other jurors during the trial.
Perhaps overconfidence dissuaded Fuller and company from worrying too much about jury composition. As in the Rodney King/L.A.P.D. case, in which the prosecutors left three ex-security guards, the brother of a retired L.A.P.D. sergeant, and three National Rifle Association members on the panel, the defense seemed uninterested as a pro-prosecution jury formed before their very eyes, adding to Tyson’s growing list of handicaps.
By 11 a.m., January 29, the 15 jurors (including three alternates) had been selected. Twenty-five percent were black and 75 percent were men. Five important pretrial matters awaited decisions from Judge Gifford, starting with a petition by the defense to exclude a WISH-TV tape containing an inflammatory Tyson quote. Gifford granted the exclusion, so the jury never heard the ex-champ say, during an aside at a press conference, “I should have killed the bitch when I had the chance.”
The state opened its case by calling one of Washington’s hotel roommates and several Canterbury Hotel employee s in an effort to reconstruct the evening’s events.
The witnesses included Virginia Foster, the limousine driver who chauffeured Tyson around Indianapolis and who drove Washington back to her hotel after the alleged rape. Asked about Washington’s demeanor when she returned to the limo after the alleged attack, Foster said, “Her hair wasn’t as neat; she looked frantic, in a state of shock, dazed, disoriented, couldn’t focus,” and she seemed “scared.”
Fuller’s impersonal style put him at odds with Foster from the start. Because of an alleged personal incident involving Tyson (she testified that he lured her to his hotel room, tried to touch her, and then exposed himself), Foster obviously bore a grudge. Fuller, however, never seemed to recognize his need to discredit this testimony. Time and again, openings occurred in which Fuller could have grilled the witness. Instead, he allowed Foster to step down with out a scratch, and the faces of the jury seemed to indicate that some questioned Tyson’s alleged invincibility. The next witness, emergency-room physician Dr. Thomas Richardson, said Washington had two small vaginal abrasions, consistent with 20 to 30 percent of the injuries seen in sexual assault cases. This testimony in itself was critical, but then he made the statement that may ultimately have decided the case. When asked by Garrison whether he had seen such injuries before, Richardson calmly replied that only twice in 20 years had he ever seen such abrasions following consensual sex. This evidence hit home, since jurors always seem to want to believe a medical expert if possible.
Fuller, however, didn’t leave bad enough alone. During cross-examination, he accidentally unleashed a bomb: Richardson said that in 20,000 cases, he had seen only two with like injuries that occurred during consensual sex.
Fuller’s lack of nimbleness during cross-examination was no fluke. Though he’d represented such notables as John Hinckley Jr. and junk-bond king Michael Milken, his reputation came mostly from federal court white-collar cases such as tax fraud and bribery. He simply wasn’t familiar with the rough-and-tumble county criminal courts, and lacked recent experience in sex-crime cases. He couldn’t locate exhibits, fumbled his delivery, exhibited a lack of knowledge of Indiana law, and generally handled Tyson’s defense more like a first-year law student than a seasoned pro.
Theoretically, his only task during the case was to show that Washington consented to having sex with Tyson—a bulletproof defense against rape charges. But instead of concentrating on this point, he pumped witnesses for testimony concerning Washington’s knowledge of Tyson’s bad-boy personality, the boxer’s continuous use of crude sexual innuendoes, and her dubious behavior in accompanying him to his hotel room at 2 a.m.—all to further the idea that she knew what she was getting into.
CUTTING TYSON DOWN
Unfortunately for Tyson, reminding the jurors of his uncouth behavior probably took its toll. When the trial began, all 12 seemed in absolute awe of the man who rose from the Brooklyn slums to become heavyweight champion of the world. That is, until the defense began dismantling this wall of celebrity, brick by brick.
In a misguided attempt to show that Washington must have known that Tyson wanted sex, the defense called witness after witness to testify about their client’s lewd remarks and crude behavior during his encounters with the Miss Black America contestants, and even with Washington herself. Pageant contestant Tanya Traylor, for instance, recalled that everything he said had sexual overtones. He asked “everybody” out, she said, and “if he got a no, he moved on to the next girl.” He talked about taking girls “back to the room, and that a kiss will do, but sex is better.” At the pageant’s opening ceremonies, Tyson’s irreverent conduct continued, Traylor testified. When another contestant asked him about the size of his hands, Tyson made a suggestive remark about what “hands could be used for,” she said.
The defense thus pounded the ex-champ down until the jury began to see how he could be guilty. That, coupled with Tyson’s disastrous performance on the witness stand, stripped him of the aura of invincibility.
Amazingly, Fuller spent little time on questions that might have given jurors the full story of what happened in Room 606. Washington, testifying for the prosecution, offered a lengthy account of the events of July 18 and 19: how Tyson called her around 1:45 a.m. to tour the city, then picked her up in his limo, took her back to his room, and made small talk as they both sat on the bed. Then, Washington testified, they had the following conversation.
“Do you like me?” Tyson asked.
“You seem okay,” she replied.
Then “his voice changed a bit,” Washington testified, and he said, “You’re turning me on!”
“I’m not like that,” she answered in the hotel room.” Then, she testified, “He put his hands up to his face,” and she stood up, saying, “I want to use the bathroom, and then we’ll leave.” “Okay,” Tyson said. Then Washington got up, leaving her purse behind, she testified. After using the bathroom, she said, she noticed some discharge on her panty shield. Washington said she removed the liner and threw it away. “I had a pad in my purse,” she said, but “figured I could put it on later.”
When she came out of the bathroom, Washington said, she saw “Mike Tyson, sitting on the side of the bed with nothing on but his underwear.” Tyson then pulled her to the bed, pinned her down and raped her, she testified. “He was mean, evil,” she said. “I got on top and started to try to get away, but he slammed me down again.”
Fuller faced a tricky problem when he began cross-examination. In a sex-crimes case, the defense lawyer must remember that whether true or not, the witness tends to believe what she says. Therefore, it is essential that he question the witness carefully, but vigorously, for inconsistencies. Fuller, however, never challenged obvious problems in Washington’s story. Exactly why did she remove her panty shield? How did Tyson perform oral sex on her and still keep her pinned to the bed? If Tyson is one of the strongest men in the world, where were the bruises on the 108-pound woman?
Fuller also did not take advantage of Washington’s propensity to provide more information than requested, and to speak much more rapidly when put on the defensive. Twice the defense attorney failed to see that she became defensive when confronted with an inconsistency, and his failure to follow up let Washington off the hook.
Through their actions before and during the trial, Fuller and company provided the jury with more ammunition for Tyson’s conviction than Garrison and the prosecution could hope for. But the worst was yet to come.
Defense attorney Voyles sat like a caged tiger at the counsel table during the trial. Several times he had to hold his tongue and resist rising to Tyson’s defense when Fuller or cocounsel Kathleen Beggs failed to object to Garrison’s often objectionable behavior.
Apparently Voyles knew from day one that he would have little to do during the trial: His partner, Dennis Zahn, declined to take the case for just that reason. Instead, Voyles quarterbacked the local defense effort, then added his name when chief counsel Fuller filed motions with the court. Many times during the proceedings, he glared at Fuller when the chief defense counsel ignored testimony or failed to object. During Garrison’s final arguments, Voyles’s instincts took over for one moment when he rose to make a proper objection. Fuller looked at him as if to say, “Jim, I’m the lawyer here. Sit down.” And reluctantly, Voyles did.
Many felt before the trial that the most import ant issue was whether the state could present a strong enough case to force the defense to put Tyson on the witness stand. But to the surprise of everyone, Fuller announced in opening argument that “he will tell you”—meaning, of course, that Tyson would testify. Some observers wondered whether Fuller uttered those unfortunate words mistakenly; whatever the reason, he boxed him- self into a corner with the jury.
True to Fuller’s promise, at 4:02 p.m., February 7, the ex-champ took the stand. Fuller then asked a series of questions so leading that Gifford scolded him for his blatant behavior. Nevertheless, the testimony did offer a glimpse of Tyson’s early life, along with his version of the events of July 18 and 19. But then he dropped an A-bomb on his own defense by recounting what he said upon first meeting Washington.
“I explained to her that I just wanted to f___ her,” he said. To Fuller’s question of why he would use such vulgar language, Tyson testified, “That’s the way I am; I just want to know what I’m getting into before I’m getting into it.”
When Tyson said the infamous f-word, it seemed that a bolt of lightning struck the jurors’ faces. They had heard of his lewd behavior and language, but that was secondhand. This was Iron Mike saying the word. Adding to the disaster, Tyson, against most accepted legal doctrine, had testified at his grand jury hearing months earlier. During this unfortunate encounter (the transcript for which gave Garrison a huge advantage), Tyson said he used the words, “I want you.” Now, he claimed, he used the much more direct, “I want to f___ you.” Moreover, he said Washington’s responses—“That’s kinda bold,” and “Sure, just give me a call”—never changed. While such a reaction might have followed “I want you,” it seemed absurd after the second statement.
Tyson paid for his mistakes during Garrison’s cross-examination. Uneducated and unprepared, with his grand jury testimony staring him in the face, the usually agile boxer took a pounding from the crafty lawyer. The mismatch became obvious when Garrison grilled Tyson on the boxer’s failure to mention the f-word to the grand jury. “Are you telling this jury that you failed to tell the grand jury about using the f-word, that it was just an omission on your part and it really happened; you really did say that?” Garrison asked.
“I said I wanted Desiree, yes,” Tyson replied.
“You said to Desiree Washington, 18 years old, just graduated from high school, ‘I want to f___ you,’ and she said, ‘That’s bold. Call me’?” Garrison continued.
“No,” Tyson replied. “She said, ‘That’s pretty bold.’ I said, ‘Well, that’s the way I am. I want what I want.’ I said, ‘I just want you to know where we stand.’ She said, ‘Sure, call me.’”
Garrison thought so much of this point that the last piece of evidence heard by the jury before the judge’s final instructions was a tape of Tyson’s grand jury testimony, during which he obviously didn’t say,” I want to f___ you.”
Tyson’s credibility suffered severely. It is difficult to understand why his attorneys didn’t bring up this obvious discrepancy themselves during their direct examination of their client, either to explain it away or soften the blow. Besides this fiasco, Tyson also erred badly when he described Washington’s behavior in the hotel bathroom after the alleged rape. Tyson, who said he was lying on the bed, testified, “I was watching her. She had underwear on, they were polka-dot. I thought they were flowers. They looked like flowers then, but they were polka dots. She was in the mirror doing her hair, a little dance, like shoo, shoo, shoo, doing her hair.” He then stated that Washington became incensed when he refused to accompany her downstairs to his limo.
This portrayal differed greatly from that of Foster, who said that only a few minutes after the alleged attack, Washington came down to the limousine crying, with her hair a complete mess. The jurors’ reaction to Tyson’s explanation of this important point, and others, seemed one of disbelief. Thus Tyson the witness proved his own worst enemy.
After the cross-examination of Tyson, the defense called another retinue of friendly witnesses. Tanya St. Claire Giles, a pageant contestant from Illinois, said Washington described Tyson as “really built,” with “a butt to hold onto.” But another contestant, LaShauna Fitzpatrick, inadvertently jolted the defense during cross-examination by Garrison. Asked how Washington appeared when Fitzpatrick saw her on July 20, the witness said Washington “looked like death.” Jurors Nos. 2 and 5 both turned and looked squarely at Tyson for his reaction. There was none.
Testimony ended at 2:01 p.m., February 10. Sometimes a trial becomes known more for the evidence that wasn’t presented by either side. History will show that this trial produced little testimony about the rape itself. Instead, the jury had to decide the outcome of the case based less on facts than impressions.
Just 10 minutes before Judge Gifford said the word “guilty” three times (one for each count), Tyson sat by himself, head bowed, at the defense counsel table. With the courtroom jammed to capacity, Tyson’s counsel failed to accompany him into the courtroom. The ex-champ appeared downcast. Regardless of the verdict, that sad picture of Tyson alone became etched in everyone’s memory.
After the first “guilty” from Gifford, Tyson’s head cocked to the side as if he’d been hit with a hard right. He whispered, “Oh, man,” and slumped in his seat.
Gifford then asked Fuller if he wanted to poll the jury. He said yes, then waited for the judge to do it, as is the procedure in federal court. Only a nudge and whisper from Beggs moved him to get up and ask each juror, “What is your verdict?” Thus, Tyson was forced to hear 12 straight guilties from the jurors. At 10:53 p.m., it was all over; Tyson was now a convicted felon facing up to 63 years in prison.
No one can say for sure that, with different counsel, Mike Tyson would have been acquitted. Perhaps Fuller meant well, but was out of his element. Maybe Tyson’s new attorney, Alan Dershowitz, will come to the rescue. The 53-year-old Harvard law professor’s passion for the downtrodden made him famous for taking celebrity clients (including Claus Von Bulow, Michael Milken, and Leona Helmsley) and tough cases. That could explain why, over the last 20 years, 57 of his appeals reportedly produced only nine clear-cut victories. Dershowitz himself recognizes his role in long-shot cases, once telling ESPN that he comes into cases as a coroner doing an autopsy and tries to bring the patient back to life.
At sentencing, Gifford imposed 10 years (four suspended) for each of the three counts, all to be served concurrently; plus the maximum $30,000 fine. With six years to serve, Tyson could be released in three years with good behavior (though he would continue on probation). So Iron Mike might gain freedom before he turns 30, and perhaps resume his boxing career. On the other hand, if he misbehaves in prison, he could stay there until age 35, when his career potential will be gone.
Once Gifford ruled on the matter of bail, Tyson stood up and gave his jewelry and wallet to Fuller. Camille Ewald, his foster mother, gave him a hug, and the ex-champ was escorted by Marion County Sheriff Joe McAtee through the back door of the courtroom towards the sheriff’s office booking station. After being searched, fingerprinted, and processed, Tyson strolled through the doors with a smirk on his face and handcuffs on his wrists. Forty-five minutes later, he entered the Indiana Department of Correction Diagnostic Center in Plainfield—as prisoner #922335.
Read IM’s 25th anniversary retrospective on Mike Tyson’s Indianapolis trial from the February 2017 issue, including firsthand accounts from lawyers, the judge, a juror, and other close observers.