Smith Trial May Rewrite Rules of Celebrated Cases

After eight months of unrelenting publicity and high-priced legal maneuvering, a jury is scheduled Monday to hear opening arguments in the rape trial that will decide the future of William Kennedy Smith and add another chapter to the saga of the glamorous but troubled Kennedy family.

The case began as an ordinary date-rape allegation, like hundreds that come to trial each year. But since a crime was reported March 30 at the Kennedys’ oceanfront estate, it has become the nation’s most celebrated such case, and no matter how it ends, it is likely to greatly influence public attitudes on sex crimes and their victims.

The debate “will likely do more to shape the law of rape as it is actually enforced, rather than simply written” than any scholarly commentary, Susan Estrich, a USC law professor and specialist in sex-crime law, recently told a group of Palm Beach County lawyers.

With its intense publicity, the case may become a legal landmark on the question of conflicts between a defendant’s right to a fair trial and the press’ freedom. Stirring echoes of the Dr. Sam Sheppard murder trial of the 1960s and the Lindbergh baby kidnap case in the 1930s, Smith’s lawyers have charged that coverage has created a “carnival atmosphere” that has made a fair trial impossible.

Among the first orders of business Monday is another in a string of defense motions to dismiss all 37 prospective jurors on grounds of unfair publicity. That motion may fail, as have identical ones before it.

But another point could decide the trial’s outcome before it has barely begun. After a six-member jury is impaneled Monday morning, Palm Beach County Circuit Court Judge Mary Lupo is to decide whether to allow evidence from three other women who claim to have been sexually assaulted between 1983 and 1988 by the 31-year-old medical school graduate. If the evidence is allowed, it is likely to be powerfully persuasive in convincing jurors of Smith’s criminal inclinations.

Because the case rests largely on the accuser’s word against the defendant’s, one local defense attorney, Bert Winkler, argues that if the three women’s testimony is excluded, prosecutor Moira K. Lasch may find it “very difficult” to prove her case. Several lawyers have said they consider it unlikely, though possible, that the evidence will be admitted.

If it is entered, it would turn the proceeding into a series of four “mini-trials” on each of the allegations--and disrupt Judge Lupo’s forcefully stated plan to conclude the trial by the Friday before Christmas.

Even if the three women are barred from testifying, the proceeding is likely to bring out ugly testimony on the past lives of Smith and his accuser. Although the judge has generally barred the defense from exploring the victim’s past sexual and medical history, the defense may be able to pursue those avenues if prosecution witnesses touch on these issues in testimony.

Last week, the defense asked permission to further question the accuser, the accuser’s stepfather, her mother-in-law and the father of her child on such subjects as past abortions, drug use and her possible mistreatment as a child by her natural father. Defense lawyers said they also want answers to questions on whether the accuser’s father burned the family house and whether her stepfather, a conservative industrialist, drank heavily or held a longtime grudge against the Kennedys.

The questions, the attorneys said, could show that the accuser nourished a dislike of men in general and the Kennedys in particular, and could help establish their contention that she suffered from “attention deprivation” that made her want the publicity a rape allegation against a Kennedy would bring. The judge has ruled that the defense may ask certain questions.

Court papers list 131 people as possible witnesses in the case, although only a fraction of that number is likely to testify. The list of expert witnesses includes specialists in astronomy, botany, psychiatry, meteorology, architecture, toxicology and medicine.

Dr. Henry Lee, a Connecticut medical examiner, is expected to testify that the woman’s clothing did not show the damage consistent with her claim of rape. The prosecution will bring forward Tom Carroll from the county sheriff’s office to testify that the accuser did not have drugs in her blood at the time. The defense will offer James Garriott, a Texas forensics expert, to give his opinion that the state’s blood test was imprecise.

The defense also is expected to swear in an ecologist to testify that traces of plant material and sand in the accuser’s clothing came not from the lawn where she said she was raped, but from the beach where she and Smith walked some minutes earlier.

The most critical testimony will not be that of learned men and women, but of the two principal witnesses whose most critical assignment is to prove to the jurors that they are responsible, moral, believable people.

Next most closely watched will be Smith’s uncle, Sen. Edward M. Kennedy (D-Mass.), whose comments on the case have often seemed contradictory or deceptive.

Kennedy once said he did not know about the rape allegation until the Monday after the crime. Later he said he heard about it on Sunday, the day after it was alleged to have occurred.

The senator has said he awakened his son Patrick Kennedy and Smith to go out at midnight on the night of the alleged crime; others have said the outing began much later.

Kennedy’s appearance at the trial will be remarkable in several respects. Defense attorneys will naturally treat him with the greatest deference. But in jury selection, Roy E. Black, Smith’s lead attorney, repeatedly drew from many prospective jury members the view that the senator’s drinking and womanizing make him the least admirable Kennedy.

Black’s goal during jury selection has appeared to be to separate the senator from his nephew, and to pin most of the unflattering associations the family brings forth on Kennedy.

No matter how long the trial lasts, it will play to a vast audience. Eighty news organizations, with 488 reporters and photographers, have received credentials to cover the trial at the Palm Beach County Courthouse.

The new Courtroom Television Network plans to carry live coverage to the roughly 6 million homes it reaches and then replay highlights during the evenings. (In Southern California, one cable system, in San Diego, carries the programming, company officials say.)

Publicity in Palm Beach County has been unabating. Jack Cole, a talk show host on local WJNO radio, has discussed the case on the air with lawyers, police officers, local officials, average citizens and one prospective juror.

“I don’t know that a day has gone by that I haven’t mentioned it,” says Cole, who volunteers his view that he thinks the accuser is of poor moral character.

The Palm Beach Post has covered the case encyclopedically. The paper has written about new developments, regularly reprised earlier ones and, in a column called Media Watch, scolded other news organizations, such as Cable News Network and the Washington Post, for what it says are factual errors about the trial or the ways of Palm Beach.

One sign of the audience’s interest is a growing flow of letters to Judge Lupo, decrying the unfair treatment of Smith, the overwhelming influence of the Kennedys or complaining about the gall of an accuser who went to a man’s home at 3 a.m.

One recent letter, from Quebec, in French, says the accuser “should well have known what would happen” when she gave Smith a ride. “The world will never change.”

A letter from a prison inmate in Georgia complimented Lupo on her appearance. Two others, from women who said they had been following jury selection on television, said they were worried that Lupo’s frequent drinks of water could be a sign of diabetes.

Local attitudes about the case seem to be polarized between the business people who hope it will spur trade in a recession and the other residents, who long ago wearied of the subject.

The Palm Beach County Convention & Visitors Bureau has recently tried to persuade the army of journalists covering the trial to help the local economy by writing about other aspects of the community. But one prominent local businessman said the trial only means to him “that traffic around here is going to get a lot worse.”

Many prominent Palm Beach residents, noting that the Kennedys have rarely involved themselves in local affairs in their 70 years as part-time Palm Beachers, say they consider the trial as a battle between outsiders. Others seem most concerned about how the trial has disrupted local order and tranquility.

The local irritation with the national press attention was apparent last month when law professor Estrich delivered her remarks on sex-crime law and the Smith case to the Palm Beach County Bar Assn. Only two questions were asked and one was: “What do you think are the responsibilities of the press not to turn this into a circus?”

Black, Smith’s attorney, has contended that there have been six break-ins at the high-walled Kennedy mansion since the allegations were brought, although only one of them, allegedly by a free-lance photographer, has been reported to police.

There are likely to be other strange sideshows as well. Hezekial Carroll, a 37-year-old West Palm Beach resident, hung around the county courthouse for several weeks trying to sell 5-by-7 photographs of the alleged victim. Last week, however, he was taken out of circulation by a conviction for forging checks worth nearly $7,900.

If Smith is convicted, he could receive 15 years in jail, although as a first offender he is more likely to get a sentence ranging from mere probation to four years incarceration, lawyers say.

But, says Estrich, “Whatever the jury decides, the larger trial going on outside the courtroom, on radio shows, in newsrooms, at kitchen tables and around coffee machines, may ultimately be the more important one.”