Prosecutor Suffers Setback as Smith Rape Trial Begins

In a damaging setback to the prosecution on the first day of arguments, the judge in the William Kennedy Smith rape trial ruled Monday that jurors will not be permitted to hear testimony from three other women who claimed to have been sexually assaulted by the defendant.

Without explanation, Florida Circuit Judge Mary E. Lupo denied a motion to admit testimony that the prosecution said would show that Smith had a pattern of pursuing pretty brunettes, “enticing them to his lair” and making sexual attacks that were “violent, sudden and without provocation.”

The defense argued that the alleged attacks were too dissimilar to show a particular criminal pattern and that the testimony would only prejudice jurors against their client, who was never charged in those alleged attacks.

Smith, a 31-year-old medical school graduate and nephew of Sen. Edward M. Kennedy (D-Mass.), is charged with second-degree rape in the alleged assault of a 30-year-old Jupiter, Fla., woman on March 30 at the Kennedy family’s Palm Beach estate. Lupo’s ruling came only minutes before a six-member jury was sworn for the trial, which is expected to last two to three weeks.

In the afternoon, prosecutor Moira K. Lasch began her opening statement by describing the alleged victim as a devoted full-time mother who came forward not for money, publicity or “any ulterior motive.” Her charge was made, rather, “because she believes in our system” Lasch said.

But Roy E. Black, the chief defense attorney, outlined what he said were inconsistencies in the accuser’s testimony and argued that sex between the two was a “totally consensual act of love.” He pointed to ripped panty hose that the victim allegedly had shed in her sports car as evidence that she intended to have sex with Smith after driving him home from a Palm Beach nightclub.

While the decision on the three women’s testimony had been widely predicted, it was nonetheless interpreted by some lawyers as a crucial development. Paul H. Rothstein, a professor of law at Georgetown University, said the ruling probably will be “the most significant in the trial” and will “tilt things significantly in the defendant’s favor.”

Rothstein, who watched the morning’s proceedings on television, said that juries find such testimony so compelling that with it, “it would have been a sure win for the prosecution. . . . This makes their job more difficult.” Bert Winkler, a Palm Beach County defense lawyer and former prosecutor, has predicted that the prosecution will find it “very difficult” to win its case without the testimony from the women.

Lasch asked Lupo for a written ruling on the evidence, which suggests that Lasch may appeal the decision.

Under a Florida law similar to those of many other states, evidence of past crimes can be introduced only if the acts are so similar that they show a highly specific criminal “signature.”

The prosecution argued that in all three cases, Smith charmed unescorted women with his politeness, then contrived to be alone with them in family homes--twice in Washington, D.C., and once in Manhattan. “Every time it was his territory,” said Ellen Roberts, a prosecutor. “Not the back of the car, not a motel.”

But Black contended that the alleged incidents did not have the “unique characteristics that exclude common occurrences,” as is called for under the statute. To say merely that Smith sought out unattached, attractive women “is not evidence of any plan whatsoever,” Black said.

He also ridiculed the testimony of one of the accusers, who was 19 years old in the spring of 1988, when she said Smith raped her. The woman, a college undergraduate at the time, claimed that Smith assaulted her on the bed of his loft apartment one night while she was drunk, then offended her the following morning by reading the newspaper over breakfast rather than carrying on a conversation with her.

In his opening statement, Black said that Smith and the accuser in the case here “were kissing, hugging and fondling” on the beach in front of the Kennedy estate. But he said the woman’s attitude about Smith changed sharply after they had sex on the lawn of the estate.

Then, she panicked over the thought that she might become pregnant and felt Smith did not seem as interested in romance as she had hoped. She began to feel he was “cold and indifferent to her concern. And her hopes for their relationship “were not fulfilled,” Black said.

He said that her varying explanations of why she and her friends took an urn, a plastic picture frame and a note pad from the Kennedy house demonstrate the weaknesses of her story. According to Black, the woman first said that she took the items as compensation for what she had suffered; then, for revenge. She later said that they were taken to prove she had been at the Kennedy estate.

Black said that--despite her claim that she had been raped--when the accuser went back to her friend Anne Mercer’s home, the two did not call police. Instead, they began dialing phone numbers that appeared on the legal pad they had taken from the Kennedy house.

Black showed the jurors photos of a crumbling cement stairway leading from the Kennedy house to the beach. He said that if the accuser had been pulled down by Smith on the stairway, as she alleged, her injuries would have been far more severe than doctors subsequently found.

The prosecutor sketched out how the alleged victim went into the Kennedy estate that night expecting only a tour of the mansion and to see the beach. The two had exchanged one kiss in her car and two more on the beach, according to Lasch. But “she felt there was no sexual overture on the part of the defendant,” Lasch said.

After Smith stripped off his clothes and dived into the ocean, the woman felt uneasy and began to retreat back to the house. Then she felt his hand around her leg, Lasch said. She broke away and ran across the lawn, but then she felt his body slam against her, the prosecutor said, and she thought: “If this is play, it’s too rough for me.”

Moments later, he had raped her, and she fled into the darkened house, “frightened, upset, fearful” of what Smith would do to her next, Lasch said.