Prosecution Statements Prejudicial, Smith Lawyers Say

Lawyers for William Kennedy Smith urged a Palm Beach, Fla., court Wednesday to bar police and prosecutors from making prejudicial statements that they say will undercut their client’s chances of receiving a fair trial on rape and battery charges.

The lawyers cited as particularly damaging a “probable cause” affidavit filed in connection with the case of alleged sexual assault at the Kennedy family’s oceanfront estate on Easter weekend. They asked that it be erased from the record.

“The intervention of this court is necessary now to preserve whatever possibility remains that Mr. Smith will receive a fair trial on the charges leveled against him,” said Mark P. Schnapp and Randall Turk, two of Smith’s lawyers.

Smith, 30, is a nephew of Sen. Edward M. Kennedy (D-Mass.), who was at the estate when the rape allegedly took place. The case has been heavily covered by television, newspapers and other media.

The motion was filed with County Circuit Judge Mary Lupo, the trial judge in the case. It asks for a hearing on the matter. Copies of the motion were made available here by Smith’s lawyers.

In the affidavit setting forth probable cause for concluding that Smith may have committed rape, State Atty. David Bludworth noted that the woman who named Smith as her attacker had shown “no signs of deception” in polygraph and computer voice stress analysis examinations.

“Unlike virtually any other form of inadmissible evidence, lie detector tests--whether in the form of polygraphs, ‘voice stress’ analyses, or some exotic truth serum--are particularly likely to undermine the chance for a fair trial,” the defense attorneys said.

The reliability of the lie detector tests administered to the woman in the Smith case are “especially suspect,” the lawyers argued.

They noted that the probable cause affidavit failed to disclose that the woman was given more than one voice stress test after failing to pass on the initial try. This “necessarily raises questions about the reliability of the test the police ultimately claimed showed no deception,” the defense lawyers said.

“Because the police and state attorney released only those results they wanted to release, and because the results were released to the media and not in court, there was no opportunity for Mr. Smith to challenge the reliability and accuracy of these tests and their results before the damage was done,” Schnapp and Turk said.

A spokesman for Bludworth declined to comment