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Mike Tyson’s Appeals of His Rape Conviction, Revisited
By Adam J. Pollack
To this day, debate continues regarding whether former world heavyweight boxing champion Mike Tyson received a fair trial which led to his conviction for sexually assaulting Desiree Washington. The appellate court decisions provide insight:
Refusal to Allow Impeaching Witnesses to Testify
In his appeal, Tyson argued the trial court erred when it refused to permit him to call as witnesses three women who came forward during the course of the trial: Carla Martin, Pam Lawrence, and R. Renee Neal, all of whom would have contradicted Desiree Washington’s version of events.
Martin was anticipated to testify that she and Lawrence were in a car parked in front of the Canterbury Hotel at approximately 1:40 a.m. on July 19, 1991, waiting for Neal. While there, Martin observed a limousine pull in front of the hotel. Martin saw Tyson and Washington “hugging and kissing” in the backseat. Martin exclaimed to Lawrence that the two were all over each other. Tyson and Washington exited the limousine, and as they entered the hotel, Washington "move[d] toward Mr. Tyson until their upper bodies appeared to be touching, and she appeared to put her arm in Mr. Tyson's."
Lawrence would have corroborated that she heard Martin’s remark and that she looked over and saw them sitting in the backseat of the limousine in close proximity to one another.
Neal would have testified that she observed Tyson and Washington “holding hands as they entered the hotel."
Their testimonies would have contradicted Washington’s version of events, for she testified Tyson hugged and kissed her when she first got into the limousine at her hotel, but no further physical contact occurred in the limousine thereafter, and that she walked into his hotel behind him, not arm-in-arm or holding hands.
The trial judge ruled that the witnesses had come forward too late, and that the Defendant took too long to notify the Court about their existence and intent to use them. The trial began on January 27, 1992. The witnesses came forward to the defense team on January 30, 1992. The prosecution was first notified about the witnesses on February 2, 1992.
In Tyson v. State, 619 N.E.2d 276 (Ind. App. 2 Dist. 1993), in a 2-1 vote, the Indiana Court of Appeals refused to reverse Tyson’s conviction and grant him a new trial. The Court agreed it was clear that the anticipated testimony would have contradicted Washington’s testimony. Nevertheless, as impeaching evidence, the Court held that the excluded testimony was cumulative. Washington was impeached on other points, including the details of the rape. For example, fellow Miss Black America pageant contestant, Madeline Whittington testified that Washington told her she was going out with Tyson and stated, "This is Mike Tyson. He's got a lot of money. He's dumb. You see what Robin Givens got out of him." Further, there was testimony that Washington gave conflicting accounts of how the incidents occurred, and gave impeaching statements to various witnesses which she later denied.
The Court also held the evidence of the conduct occurring between Tyson and Washington in the limousine before they entered the hotel and their conduct as they entered the hotel was not crucial, considering the spectrum of evidence corroborating the determination that Tyson reasonably and honestly believed Washington would consent to sexual conduct in the future, and the spectrum of impeaching evidence admitted during the course of the trial, including Washington’s inconsistent descriptions of the critical details of the events in Tyson's hotel room. Therefore, the appellate court held that the trial court did not abuse its discretion in determining that the testimony of Martin, Lawrence, and Neal was not vital to Tyson's defense.
Tyson argued that the trial court should have provided the jury with several requested jury instructions—mistake of fact and reasonable belief—and that failure to do so was prejudicial to him. He argued that even if Washington, in her own mind was not consenting, if a reasonable person in Tyson’s position mistakenly believed that she was consenting, then he could not be found guilty.
Tyson testified, "I believe that we had both made it clear earlier that day what was going to happen . . . . I'm sure we made it clear.” Tyson testified that earlier in the day, soon after he had met Washington, he explained to her “I wanted to fuck her," and she responded, "Sure, just give me a call." At nearly 2 a.m., he picked her up and went to his hotel, and they went into his hotel room and had sex, digital, oral, and vaginal. “She had told me not to come in her. She said, "Don't come in me, don't come in me. I'm not on the pill," and I pulled back and I ejaculated on her stomach and her leg.”
Washington testified that when Tyson saw she was crying during the rape and after the two acts of criminal deviate conduct (oral and digital sex), he asked if she wanted to "get on top," to which she responded in the affirmative without "then explaining to him that she agreed to go on top only because she thought it would enable her to get away," and that she asked Tyson to, "Please put a condom on" and said, "I don't need a baby." Tyson argued that "[a] properly instructed jury could have found (or entertained a reasonable doubt) that these exchanges could have led a reasonable person to believe that Desiree Washington consented, even if in her own mind she may not have been consenting." The Court upheld the trial court’s rejection of his proposed jury instructions, holding that the facts did not merit such instructions.
Selection of the Judge by the Prosecutor
Tyson argued he was denied due process because the prosecutor was able to select the trial judge who would preside over his case, and it was fundamentally unfair to allow the prosecutor to choose the judge he wanted; the inference being that a different judge might have issued different rulings throughout the trial. The Court of Appeals ruled that because Tyson failed to show he was prejudiced in any way by the selection of the particular judge, he was not deprived of his due process rights. And yet, the Court also said,
However, we strongly urge the criminal division of the Marion County Superior Court to change the method by which cases are assigned to the rooms in the division. The existing system of filing cases is totally inappropriate and must be abandoned in favor of a system in which the prosecutor cannot control the assignment of a case to a particular judge. Presently, the criminal division of the Marion County Superior Court lacks the appearance of impartiality that is required to maintain the confidence of the public and the accused in the system.
The Dissenting Opinion
In his strong dissent, Judge Patrick Sullivan argued that Tyson’s conviction should be reversed and he should have been granted a new trial. “My review of the entire record in the cause leads me to the inescapable conclusion that he did not receive the requisite fairness which is essential to our system of criminal justice.”
This judge believed the three excluded witnesses for the defense should have been allowed to testify. Defense counsel could not have revealed the witnesses sooner, because they were not yet known. Further, the defense had a duty to conduct a reasonable investigation before seeking to add witnesses. They acted reasonably and diligently. There was neither a discovery order breach, nor any delay by the defense. The State could have requested a continuance if it needed one, yet not only did it not request a continuance, it said it did not want one. Further, an appellate court should be restricted to validating the ruling of the trial court based on the reasons given. Yet the appellate court argued the evidence was cumulative, something the trial judge never concluded.
Judge Sullivan noted that the State’s position with respect to the excluded testimony was “somewhat schizophrenic, and most certainly inconsistent.” It tried to minimize the importance of the testimony, while at the same time acknowledging that such testimony might have grave implications for a successful prosecution, emphasizing the great lengths to which the State would have to go to combat the testimony.
The dissenting judge took the majority to task for calling the evidence merely impeaching, as if that was not crucially important to the defense, and also noted that Tyson’s proposed jury instructions regarding mistake of fact should have been provided to the jury. “I strongly disagree [with the majority]. Even if the offered evidence were to be construed solely as impeaching, impeachment upon one issue is not cumulative of impeachment upon other issues.” This judge believed there was sufficient testimony that a jury could reasonably believe there was consensual sexual contact in the hotel room, or at the very least that Tyson reasonably believed the contact was consensual. The manner in which Tyson and Washington interacted before the acts complained at issue was greatly relevant as to whether Tyson reasonably believed Washington was consenting. Therefore, the exclusion of the testimony was “particularly prejudicial and that prejudice was magnified by the failure to give instructions with respect to mistake of fact, reasonable belief or to instruct that the degree of culpability, i.e., knowing, was applicable to the essential element of compelling force.” Judge Sullivan believed it was inappropriate for an appellate court to speculate the weight and credit a jury would have given the evidence or its impact, for that was for a jury to decide. He believed “the excluded testimony of Ms. Martin, Ms. Neal and Ms. Lawrence would have added to the factual mix before the jury and may have reasonably tipped the deliberative balance in favor of acquittal.”
Tyson’s Second Appeal – Newly Discovered Evidence of False or Misleading Testimony
In Tyson v. State, 626 N.E.2d 482 (Ind. App. 2 Dist. 1993), Tyson alleged that his conviction should be reversed as a result of newly discovered evidence, which was that all along Washington had planned to sue Tyson in a civil court, and had retained an attorney immediately for that purpose, despite claims under oath to the contrary.
However, the Indiana Court of Appeals held that Tyson’s counsel had failed to ask the right questions. Tyson argued that Washington and her parents, in their depositions and at trial, testified perjuriously, falsely, or misleadingly in order to obscure his ability to discover the family's financial motives.
Although Judge Sullivan concurred with the majority in this ruling, nevertheless he noted that indeed, “D.W. and her parents gave misleading testimony.” “If the information given by these witnesses were the only information available to defense counsel, the deposition and trial answers would have been sufficiently misleading as to indicate that further inquiry or issuance of a subpoena duces tecum would be wasteful and unavailing.” Nevertheless, this judge believed that based upon the knowledge already possessed, Tyson’s trial counsel simply did not ask the right questions. Hence, the lack of due diligence defeated Tyson's "newly discovered evidence" argument, despite the fact that his counsel had been misled.
The Indiana Supreme Court declined to consider Tyson’s appeal, deadlocked at 2-2 in its vote whether to consider the case for further review (the fifth judge recused himself). A majority vote was needed. Hence, the Court of Appeals’ decisions stood.
Adam J. Pollack is a criminal defense attorney practicing law in Iowa City Iowa. He is a graduate of the University of Iowa, College of Law, ’98.