Mike Tyson Redux
Sometimes the worst defense can be offensive
Published in 2004 Indiana Super Lawyers magazine
By Dick Cady on December 1, 2004
Boxing’s bad boy Michael Gerard Tyson went from accused rapist to convicted rapist partly because he didn’t get his money’s worth from a milliondollar defense. While the money paid for no fewer than five lawyers, “Mike just never had a chance,” says analyst Mark Shaw, an attorney and writer who covered the trial for ESPN and other outlets. Referring to Tyson’s lead attorney, Vince Fuller, Shaw says, “I don’t know that anybody could ever defend anybody worse.”
The defendant was a high-profile, physically powerful black sports star. The accuser was a frail woman who admittedly went into his hotel room voluntarily. He said the sex was consensual. She said he used force. She wasn’t beaten or severely bruised. Sound familiar?
To some lawyers, the Tyson affair of 1991-92 looks like a prequel of the Kobe Bryant case of 2003-04. Could the Los Angeles Lakers basketball star somehow end up with the kind of ineffective defense Tyson got?
Unlikely, attorneys say, because Tyson’s defense went wrong from the start, perhaps from the moment flamboyant boxing promoter Don King directed Tyson to Fuller. Promoter King had faith in Fuller for good reason.With Fuller’s brilliant counsel, King had once been acquitted of federal tax fraud. As a partner in the prestigious Washington, D.C., firm of Williams and Connolly, Fuller was a heavyweight in his own right. That he had never tried a rape case either was overlooked or must have seemed inconsequential.
Tyson’s defense may have further disintegrated when Fuller decided local counsel James H.Voyles Jr. would serve as water boy, not a fully involved co-counsel. Or maybe the disaster began on the day early in the trial in the City-County Building in Indianapolis when Judge Patricia Gifford informed Fuller that his podium had arrived and, from then on, the lectern symbolically separated the attorney and his client from the jury.
Even now, more than a decade later, lawyers in Indianapolis remember Vince Fuller’s podium and shake their heads with a mixture of bemusement and derision. The memory of it — a podium, like a law school professor or someone on the lecture circuit uses — still leaves them mystified.
Picture special prosecutor Greg Garrison, wearing cowboy boots and talking as if he just might pull out a guitar and sing “Achy Breaky Heart” for this Indiana jury. Then picture high-priced Washington hot-shot Vince Fuller leaning on his podium, as if to clarify a constitutional fine point for William Rehnquist.
“Defense lawyers standing at podiums trying to make points with a jury, that’s not my idea of a good approach,” says Duge Butler, a criminal defense attorney for 48 years. “It could have been handled with a great deal more passion.”
Forrest Bowman Jr., a trial attorney for 41 years, says, “I worked with Vince Fuller on a civil matter in Washington. His technique baffled me. I didn’t understand it. I think Voyles would have done a much better job on his own.”
Linda Pence, an attorney and former prosecutor who followed the trial as an analyst for the local CBS affiliate, agrees: “I thought Fuller was out of his element. He was just too formal. The difference between Fuller and Garrison was obvious to the jury.”
While lawyers differ in their criticism of Fuller’s strategy and approach, they are virtually unanimous in the belief that the widely respected Voyles was misused by being so little used.
Speaking about the case for the first time, Voyles acknowledges he had differences with Fuller on everything from tactics to witness questioning.
“I’d have tried it differently, that’s for sure,”Voyles says.
“Mike Has This Problem With Women”
“Mike has this problem with women,” Jose Torres, a former Tyson friend, was quoted in a 1989 biography. “He told me he likes to hurt them when he makes love to them, likes to pound them, likes to hear them scream with pain, to see them bleed.”
Reporter Tim Layden, who knew Tyson from the early days, eerily predicted in the same book:“Mike’s biggest problem far and away is women.That’s the problem that’s going to wind up nailing him some day.”
Two years later, Tyson came to Indianapolis as a celebrity guest of Indiana Black Expo. Although he had lost his heavyweight title to James “Buster” Douglas, Tyson was still a hot commodity. He was scheduled to take on the new champion, Evander Holyfield.
Among other activities,Tyson met contestants in the Black Expo beauty contest. He flirted with some of them. In particular, he seemed attracted to 18-year-old Desiree Washington. Tyson wanted to get together. She didn’t discourage him.
On July 20, 1991, Washington telephoned 911 and told the dispatcher she had been raped by a prominent person. An investigation ensued. Quickly, the Marion County prosecutor’s office became involved. As Tyson’s name leaked out, reporter Joe Gelarden remembers, “There was a media circus like something out of a Fellini movie.”
Meanwhile, Jeff Modisett, Marion County’s prosecutor, was juggling a proverbial hot potato. Despite a life-long history of finding trouble, ghetto-born “Iron Mike” Tyson was a hero to millions of African Americans. A small Ohio college had awarded him an honorary doctorate of humane letters and cited him as an inspiration to young people.
Modisett also realized any charges against Tyson would be filed in a volatile climate: the Rodney King videos, showing the police beating King in Los Angeles, had just been playing and replaying on televisions across the country, and the mood of black America was not good.
Modisett decided to turn to a prosecutor’s best friend — the grand jury. With prosecutors in, theoretically, an advisory role, a panel of citizens would decide whether to file charges. Tyson would be given the opportunity to tell his side, though by law he didn’t have to.
Now Fuller made what later would be called his first misstep — letting his client testify before what was hardly a neutral panel.
“Going to the grand jury was a mistake,” says Duge Butler,“particularly when you send someone in like Tyson, who’s not well educated and doesn’t understand the gravity with which it’s being presented.”
ESPN analyst Mark Shaw believes Tyson’s testimony gave the prosecution a blueprint for cross-examination. Moreover, the introduction of grand-jury testimony would imply to the trial jury that another jury thought Tyson was guilty.
Voyles remembers: “About a week before, I was told no, he wasn’t going into the grand jury, which I supported. Then they changed the decision. If I had been consulted, I would have said, ‘No, absolutely never.’”
In fact, when the woman who transcribed the grand-jury testimony was called during the trial itself, Voyles urged Fuller to emphasize the more than 100 mistakes in the transcript. Instead, “They never asked her one question.”
On Aug. 19, one day after his grandjury appearance, Tyson was indicted for rape, confinement and two counts of criminal deviate conduct. Shaw provides the harshest indictment of what followed: “Instead of providing Tyson with a strong, well-planned defense, Fuller’s mistake-prone, bumbling defense may have been more responsible for the guilty verdict than all the other miscalculations combined.”
Voyles Is Out and Garrison Is Pleased
It wasn’t just the defense strategy. It was Fuller himself. Even the prosecutor saw it. “Defending a man accused of rape was not Fuller’s métier,” Garrison believes. “There was something of the Victorian about him; he didn’t seem to have noticed the sexual revolution of the sixties and seventies.”
What was obvious to attorneys was obvious to laymen. “I thought Garrison had the jury eating out of his hand,” says Indianapolis Star columnist Dan Carpenter. “He knew the city. He was real personal and personable and easy-going. He had that Hoosier twang.
“Fuller worked federal-court-style. He stood at his podium and made his pronouncements. I thought the decision to let Voyles sit there and be a note-taker was a fatal mistake.”
On the defense team, Voyles says, some of his suggestions were followed; some weren’t. “There were five defense lawyers. I got along with two of them. I liked Vince, but we had philosophical differences. I assisted in any way I could, but it wasn’t my case.”
For this unexpected gift, Garrison was pleased. “After a short conversation with defense attorneys, I knew that Voyles was only along for the ride … that was welcome news.”
Voyles admits he would have taken a different, undoubtedly harder approach for cross-examining the state’s key witness, Desiree Washington. After all, Desiree Washington’s story, while compelling, wouldn’t be supported by overwhelming evidence. In fact, she had voluntarily gone to Tyson’s hotel room in the middle of the night. She had no visible injuries, and her vaginal-area bruises were minor. The alleged crime scene had been cleaned before the police got there.
Fuller didn’t place enough emphasis onthe fact that after the woman went to Tyson’s hotel room at close to 2 o’clock in the morning, she removed her panty shield and left it in the bathroom,Voyles says.“To me, and conversations with my wife and other women, that was an indication she had sex on her mind.”
Voyles also says he would have questioned her in far more detail about her admission that she asked to get on top during sexual intercourse. Washington said this was so she could look for a way to escape after Tyson forced himself on her.
“When Fuller was cross-examining Washington,” Linda Pence remembers, “it was shocking because he wasn’t questioning her really at all about the rape, as if he could not bring himself to talk about it. He made her look cute and more human.”
Voyles also believes the defense should have put far more emphasis on Washington’s lack of injuries, particularly after Garrison emphasized Tyson’s great physical strength.
This would have included more intensive questioning of the physician who examined Washington and found only two tiny bruises in the vaginal area. If she resisted this powerful assailant, as she said, Voyles wonders why police found only one sequin that had fallen from her dress.
Shaw faults Fuller on a dozen points, including the decision to announce early that Tyson would testify on his own behalf, setting him up for effective questioning by Garrison. Shaw characterizes Fuller’s final argument as a “disaster.”
Judge Gifford’s decision to exclude the testimony of three potential witnesses for Tyson also hurt the defense.“I have no idea whether Tyson was guilty or not,” Bowman, Crosby and Bowman’s Forrest Bowman says, “but I have an abiding conviction that he didn’t get a fair trial because of the excluded witnesses. I just very strongly disagreed with that decision.”
After less than nine hours of deliberation, the jury found Tyson guilty on all counts.
Judge Gifford sentenced Tyson to six years in prison. He served three. Alan Dershowitz’s highly publicized appeals failed at all stops.
Could Tyson have won with a different defense? “I always believed that it was an extremely defensible case,”Voyles says.
Carpenter adds: “It wasn’t an openand-shut case.There were gray areas. I think it came down to the credibility of two people and the effectiveness of their attorneys.”
Fuller did not respond to a request for an interview for this article. In 2000, he told DC Law, a law journal, that he didn’t think Tyson was a rapist. “It is my opinion that a very hostile community convicted him of rape, and the press condemned him without knowing the facts.”
Tyson always denied raping Washington. Interviewed in 2003 after Kobe Bryant was arrested,Tyson told Fox TV: “She’s a lying, monstrous young lady. I just hate her guts. She put me in that state, where I don’t know. But now I really do want to rape her and her … mama.”
Dick Cady is a free-lance writer. His novel The Executioner’s Mask, the story of two Indianapolis attorneys trying to save a man from death row, will be published this spring by M. Evans and Co.
For further reading about the Tyson trial, see Down for the Count (Sagamore Publishing) by Mark Shaw, and Heavy Justice (Addison-Wesley) by Greg Garrison and Randy Roberts.
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