The Palm Beach Rape Case: Then There Were Three

By NANCY GIBBS

In the court of public opinion, as the Palm Beach rape case proved again last week, the rules can be merciless compared with those of a court of law. In the | public eye, a defendant may be judged guilty until proved innocent, all evidence is admissible, all tactics are acceptable. Perhaps with that in mind, the defense team for William Kennedy Smith continues to rake through his alleged victim's history in search of scandal. But last week the prosecution resurrected some ghosts from Willy's past -- ghosts who may yet come to haunt him even if they never have their day in court.

The latest headlines erupted when prosecutor Moira Lasch disclosed that she had found three more women who would swear that William Kennedy Smith had attacked them. Even if their testimony is ruled inadmissible, the prosecutor has won an early tactical victory. "In a high-publicity case," observes West Palm Beach defense attorney Craig Boudreau, "what you say in court isn't necessarily what's going to win the case."

Like earlier court documents, the witnesses' sworn statements point to an alarming behavior pattern on the part of Smith, 30, a nephew of Senator Edward Kennedy and a Georgetown medical school graduate, who is charged with raping a 29-year-old woman at the Kennedy compound during Easter weekend. The three women tell remarkably similar stories about meeting Smith at a party, then being offered an escort home and a spare room at his parents' place; none of the women suspected that any harm could come to them. "He was quite charming," recalls one witness, who met Smith at a party in Manhattan in 1983. "I felt completely comfortable with him." In each case there was some drinking, some chitchat, but no sexual overtures until the sudden attack.

"One moment he was standing in front of me, talking with me, saying good night to me," says the woman, who at the time was dating Willy's cousin Max Kennedy, "and the next minute he had tackled me onto the bed and was trying to kiss me, and had his body completely cover mine, and had me pinned on the bed and from there he . . . he continued to try to kiss me and put his hands on me and wouldn't stop."

But in each case, the women recount, when it was all over, they took a hard, bruised look at their situation and decided to keep silent. "There weren't any other witnesses, and I felt that it wouldn't be believed," says one, who is now a physician. Why not? "Because I know how powerful his family is, and he does seem to be such an upstanding student." But when they read about the Palm Beach case, they all reconsidered.

Their testimony was a windfall for the prosecution. Lasch hopes to use the $ women's stories to show that Willy had a pattern of attacking women sexually, ignoring their protests and dismissing them afterward with the warning that no one would believe their claims. But it is one thing to have the women swear out a statement; it is another to wrestle their testimony into court. Legal principle holds that a defendant should be judged on evidence of a particular crime, not the record of past ones, unless he consistently commits a sort of signature offense. In this case Smith is being charged years after the fact with attacks that were never investigated or proved. In response, his lawyers asked that Lasch be censured for her "cynical attempt to sandbag Mr. Smith and to undermine his fair trial rights." Even if the evidence is disallowed, notes Neal Sonnett, a criminal defense lawyer in Miami, "I doubt seriously that there will be very many prospective jurors who will not have heard or read about these latest revelations. The notion that Willy Smith is something akin to a serial rapist is bound to prejudice them."

There was also speculation that Lasch is seeking to limit the statements Smith can make on his own behalf. If he takes the stand and comments at all on the way he treats women, for example, Lasch would be allowed to call her witnesses to prove he was lying. But if he refuses to testify, the defense loses a powerful weapon. "It really comes down to his word against hers," says Boudreau. "He's an intelligent, well-spoken man who has no prior criminal convictions. From a defense lawyer's viewpoint, he's a dream client." But if he exercises his right not to testify, experts note, it is bound to raise suspicions in the jurors' minds.

Between now and the scheduled start of the trial on Aug. 5, there will probably be a hearing to decide whether the women's testimony is admissible. The defense lawyers asked for a postponement to investigate the latest charges. They also argued for the trial to be moved to a different location, on the ground that an impartial jury cannot be found in Palm Beach County.

In any case the media circus is likely to continue. "This is the worst case of pretrial publicity that I've seen in the recent past," says Stephen Gillers, a professor at New York University law school and a legal ethics specialist. "In my view the prosecutor's tactic was strategically brilliant but improper. If victory is the only goal, she's measurably increased her chance of winning -- but she's abused her power by jeopardizing the chances of a fair trial." Perhaps. But given the Smith team's efforts to dig up dirt on the alleged victim's history, neither side can exactly claim the high road.

With reporting by A. Engler Anderson/West Palm Beach and Andrea Sachs/New York