Special prosecutor asked in rape case | Arkansas Blog

Tuesday, October 27, 2009

Special prosecutor asked in rape case

Posted By on Tue, Oct 27, 2009 at 12:49 PM

The Hog message boards were ahead of the story again.

As whispered last week, John Bass, the attorney for the father of the freshman UA student who says she was sexually assaulted by Razorback basketball players, has petitioned Circuit Court for appointment of a special prosecutor in the case.

Washington Prosecutor John Threet had declined to file charges after the woman complained about being forced to submit to serial sex acts in an alcohol-fueled party Aug. 27 at the Phi Gamma Delta fraternity. He gave precedence to testimony from the players and others that indicated she consented to the acts, though some of her interaction with three men occurred at times when only they and the woman were alone in a frat house bedroom.

Bass cited state law that says a circuit court shall appoint a special prosecutor if the elected prosecutor “neglects, or fails from sickness or any other cause, to attend any of the courts of the district for which he was elected and to prosecute as required by law[.]”

Threet said he didn't oppose the request.

The basketball players -- the two of the three accused who are currently on the squad  -- were reportedly given some unspecified team discipline for their roles in the episode.

The filing is a bombshell in several ways. Key allegations:

* The players had said there was no vaginal penetration. According to the lawyer's filing, evidence gathered after the woman went to university police to file a rape complaint, shows semen was found on the inside and outside of the woman's vagina as well on the underwear and shorts worn by the woman. I'd asked Deputy Prosecutor Dustin Roberts about a rumor of this finding  earlier in the week. He dismissed its importance and indicated the office had no interest in the rape kit because the question in the case was consent. But, I asked, wouldn't such a clear inconsistency in the accused assailants' stories be cause to re-examine the case from the point of view of the woman who alleged a nonconsensual sex act? He declined to engage in what was then a hypothetical line of questioning.

Bass said to me today: "If the Washington County prosecutor wants to set a precedent that it's ok for witnesses to lie to them in criminal case, that's their business."

* The filing complains that UA police didn't investigate the case vigorously. Among others, Bass pointed to police videotapes made during the investigation, as well as deferential questioning that included a lack of Miranda rights readings to basketball players.

* Bass also raised familial ties between the prosecutor and athletic officials. But more serious is his suggestion of protection of self-interest by police and university. He wrote:

Perhaps most troubling about this matter is the fact that it has been investigated wholly by a subpart of the University of Arkansas, UAPD. The alleged incident occurred in the Phi Gamma Delta fraternity house, which is owned by the UA, which could face civil liability as a result of the incident. Further, the Accused are members of the UA basketball team, from whose performance the UA derives substantial annual revenue from ticket and merchandising sales. The UA has enormous incentive to see that this matter is investigated in a manner favorable to UA and the Accused, as embodied in the words of Lieutenant Rice to Assistant Coach Jones during a videotaped interview: “I don’t do anything to an athlete that I’m not comfortable with the fact that this is going to become national news. It’s like [UA basketball player] Courtney [Fortson] with the textbooks. I just took care of that; it’s a minor thing.”

Yet Threet saw no reason to doubt the results of the UAPD investigation and no reason to conduct an independent investigation of any kind. A system that allows a giant governmental entity to investigate itself is fundamentally flawed, and a government agency that unquestioningly accepts the results of such an investigation and refuses to act in the face of clear evidence is negligent in its duty.

The university -- and the prosecutor -- have some explaining to do, on the ground of the contradictory rape kit evidence alone. They otherwise run the risk of leaving an impression, supported by at least circumstantial evidence, that its police and the local prosecutor extend benefit of the doubt to basketball players, even when physical evidence indicates they might have lied.

Prosecutor Threet thinks otherwise.

He said he wouldn’t object to appointment of a special prosecutor. “I have no objection to that whatsoever." He also said Bass had correctly reported his own conclusion not to reopen the case.


Threet said the semen found in the rape kit could be that of one of the basketball players. “I don’t know that it’s theirs,” he said, however. There was a time lapse between the episode and her medical visit, he noted. “But even assuming that it is, we never had an issue that sexual activity occurred. Our issue has always been and still continues to be whether there was any evidence of force or that she was so intoxicated she was unaware of what was  occurring or so intoxicated she couldn’t communicate lack of consent. And that would still be our issue.”


In the weeks since the incident and extensive publicity, Threet said only one additional witness had come forward, a person who’d passed through the room where the sex acts occurred and who corroborated accounts of others that the woman seemed to be willingly in the company of three men.


He said he didn’t perceive favoritism on the part of university police in cases involving athletes. And he said it was “no secret” that he had an in-law relationship with former Athletic Director Frank Broyles, his wife’s stepfather. His wife’s sister is also married to Athletic Department spokesman Kevin Trainor. Threet says he sees him rarely.

Here's Bass' petition for a special prosecutor.

Here is a copy of initial police reports in the incident, released under an earlier Freedom of Information Act request.

I've also asked for comments from the university and the athletic department. Nothing so far from the university. The athletic department says it won't have further comments for now. There's no other reference to Fortson in the filing and the one that appears is unexplained Fortson wasn't present at the frat house, according to police reports, but he was disciplined for sending a message on his Twitter account some days later that made an apparent jocular reference to the episode.

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