Jul. 18, 2005
RACE FOR GOVERNOR
'99 fraternity sex case has senator on defensive
A campus case at the University of Florida could complicate state Sen. Rod Smith's bid for governor.
BY LESLEY CLARK
lclark@herald.com
GAINESVILLE - As he campaigns for governor, Rod Smith touts his successful prosecution of serial killer Danny Rolling, sentenced to die for the murders of five University of Florida students.
But the former state attorney's handling of another high-profile campus case that is now resurfacing could play a critical role as he courts one of the Democratic Party's most influential constituencies: female voters.
In 1999, the campus chapter of the National Organization for Women criticized Smith for not filing rape charges against a fraternity member who attended a house party where an exotic dancer claimed she had been raped. Smith eventually charged six fraternity members with misdemeanors, including soliciting a prostitute.
Smith defends his position, saying inconsistent statements by the woman and hours of lurid video shot that night by the fraternity brothers made the case impossible to prosecute.
'I've yet to have an attorney look at the case and say, `Rod, you made a mistake,' '' Smith said.
``In sexual battery cases, the prosecutor's job is solely to decide whether a case can be successfully prosecuted, and in my judgment, this one could not.''
But now, just as the little-known North Florida state senator launches his campaign for the Democratic nomination for governor, the case is about to be revisited.
DANCER'S CIVIL SUIT
The dancer's civil suit accusing Delta Chi of negligence and the fraternity brothers of battery and emotional distress goes before a Gainesville jury in November.
And a documentary exploring both sides' claims is set for nationwide release in January. The film, Raw Deal: A Question of Consent, made its debut in 2001 at the Sundance Film Festival.
Showing interviews with the dancer, Lisa King, a sympathetic victims' rights advocate and campus police, the film includes explicit scenes from the fraternity video. And it presents Smith in an unflattering light, nervously watching the filmmakers and scurryingdown the sidewalk, refusing to discuss the case.
''I'm sure [Smith] was hoping this was all over and it's not,'' said King's mother, Cendra Gier. ``His goal for the entire time was to act like it never happened.''
A Herald review of the court file and videos show a case rife with inconsistencies, making it difficult, if not impossible to prosecute, experts say. The video shot by the students depict King as an active and at times aggressive participant in several sex acts, including some with the man she called her assailant.
RAGE REMAINS
''Someone may believe she's telling the truth, but you don't just throw it at the wall and see what a jury does,'' said Mel Black, a Miami criminal defense lawyer. ``With the video, you've got no reasonable chance of a conviction.''
King's family and the local NOW chapter remain enraged that Smith never pursued a rape charge, despite on-camera declarations from fraternity members that viewers of the video were witnessing ``what you call rape.''
Her backers say campus police bungled the investigation, discounting the woman's tale because of her line of work and charging her with filing a false report. And they say a politically ambitious Smith, at the time running for a state Senate seat, compounded the errors because he didn't want to offend a powerful ally.
''He was really abusing his prosecutorial discretion by saying cases were unprosecutable,'' said Stephanie Seguin, a NOW member.
Smith, current State Attorney Bill Cervone and Jeanne Singer, who led the office's sex-crimes unit at the time, say the video was a major obstacle. In one scene, King wields an electric razor and attempts to shave a man's genitals. She later accused the same man of assaulting her.
''I can't tell you what trauma a rape victim goes through, but I can tell you . . . what's going to fly in a courtroom,'' Cervone said. ``You couldn't possibly sell this as a woman who was taken advantage of.''
The local American Civil Liberties Union chapter, asked by NOW to investigate whether Smith's reluctance to press a rape charge deprived King of her civil rights, backed Smith. One attorney said he would have backed charging King with filing a false report. Smith dropped the charge, saying he didn't want to dissuade women from reporting rape. She was charged with operating an escort service without a license and pleaded guilty.
''The tape and the overwhelming untruths and inconsistencies document, at least to this panel member, that there was probable cause to charge Ms. King with filing a false report and there was a lack of probable cause to charge [the accused fraternity member],'' Gainesville attorney Dan Glassman said.
A HARD CASE
King's defense attorney, Craig deThomasis, sides with Smith, suggesting that police made a hard case impossible by charging King with filing a false report.
''Once they labeled her an alleged criminal, the case they handed to the state attorney is completely damaged,'' said deThomasis, who in February contributed $500 to Smith's gubernatorial campaign. 'Rod Smith has never said she was not a rape victim; he's said, `I just can't prove that beyond a reasonable doubt.' If you line up 200 lawyers that know how to prosecute, they're going to come to that same conclusion.''
The case was horrific from the start. Early in the morning, a tearful, half-nude woman ran screaming onto a fraternity lawn, asking one startled student to ''hold me,'' that ``they raped me.''
Interviewed at the hospital, King told lead campus detective Alice Hendon that she and another woman had been hired to perform at Delta Chi. She said the performance was a ''very respectful one with specific rules.'' Men were allowed to touch the dancers, but not sexually.
After the performance, the other dancer got a ride home, but King returned to the fraternity. She said she fell asleep in a bedroom and woke up the next morning to find a fraternity brother on top of her, pulling her off the couch, ripping her clothes off and assaulting her. Two others were videotaping the attack, she told Hendon. She said she flailed with her fists. She said the fraternity member wrenched her neck.
SIMULATED SEX
But the tape, which the fraternity members turned over to police, told a different story. In a dingy room at the fraternity house, ringed by hooting men tossing crumpled dollar bills, the women simulate sex with each other and several men. The bruises King told investigators she received during the assault are visible on her arms and legs.
The assault scene that King described is not shown, though she and her alleged assailant are shown taunting each other and engaging in sexual acts.
Hendon noted, ''King left out many details about the strip show in our interview'' and ticked off the inconsistencies in her story, including the bruises.
King insisted she wouldn't behave like the woman on the tape, but Hendon, after viewing the tape, charged her with filing a false report.
King's supporters note that the video might not have depicted all that King endured. Former Alachua County victims advocate Heather MacLeod, who in the documentary calls Smith a ''coward,'' said in an e-mail to prosecutors that after seeing the video she supported King.
But, Smith said, he wasn't questioning King's story. The question facing prosecutors was: Could the case be proved beyond a reasonable doubt?
''People have got to believe that prosecutors make decisions based on the evidence,'' Smith said. ``If I had the case to do over again, I'd do it the same way.''
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