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New Trial Is Urged for Tyson : Appeal: Attorneys present arguments in Indianapolis. No decision is expected for at least four weeks.

February 16, 1993|EARL GUSTKEY | TIMES STAFF WRITER

Mike Tyson's attorney told an Indiana Court of Appeals panel in Indianapolis on Monday that jury instructions were flawed and three potential witnesses should not have been excluded at the heavyweight champion's trial for rape.

Alan Dershowitz, a Harvard law professor and Tyson's attorney; and Lawrence Reuben, chief deputy for the Indiana Attorney General, presented arguments lasting 2 hours 13 minutes.

Tyson, convicted of rape on Feb. 10, 1992, is serving a six-year term at the Indiana Youth Center at Plainfield.

Tyson was accused by Desiree Washington, a Rhode Island contestant in the 1991 Miss Black America beauty pageant, of raping her in his Indianapolis hotel room July 19, 1991.

Tyson testified that they had consensual sex.

The three judges who heard Dershowitz's appeal are not expected to announce for at least four weeks whether they will grant Tyson a new trial.

But at least one legal analyst said Monday that Tyson's attorney presented a persuasive case in the Indiana Supreme Court chambers.

The exclusion from the trial of three women who said they would testify that they saw Tyson and Washington "all over each other" in the back seat of Tyson's limousine was a central theme in Dershowitz's presentation.

Judge Patricia J. Gifford ruled the three women had stepped forward too late to testify. The three witnesses weren't learned about until the first day of the trial.

"I had a sense that the justices were more in tune with the defense theories than the prosecution's," said Mark Shaw, an Indianapolis lawyer and legal analyst, who has written a book about the Tyson trial.

"I think Dershowitz has a darn good chance of getting this reversed, and some legal scholars I talked to agree with me."

Dershowitz also argued Monday that Gifford had erred in not instructing the jury to consider that Tyson "reasonably believed that Desiree Washington wanted to have sex with him."

By not so instructing the jury, Dershowitz said, Gifford "excluded another potential way of deciding the case."

Dershowitz also said that Gifford should not have permitted the playing of a taped 911 call Washington made the day after the alleged rape.

On the tape, the jury heard a dispatcher say, "don't be afraid to come forward," "it doesn't matter how rich he is" and heard the dispatcher use the word "victim" in reference to Washington.

The playing of the tape, Dershowitz said, effectively allowed Washington to testify twice.

The three justices hearing the appeal Monday were Presiding Judge Sue Shields, the first woman appointed to the Indiana Court of Appeals; Jonathan Robertson, known as a liberal; and Patrick Sullivan, a conservative known as a legal technician.

After the hearing, Dershowitz told a group of law students, "We want a new trial in which all the evidence can be presented to a jury."

Later, Dershowitz and Don King, Tyson's onetime promoter, visited the former champion at the prison, 20 miles from Indianapolis.

Also attending the appeal were Camille Ewald, the 82-year-old Catskill, N.Y., woman Tyson considers his surrogate mother; and Barbara Trathen, co-counsel for the prosecution, with Greg Garrison, at the 15-day trial.

Barring a new trial, Tyson could be eligible for parole in March of 1995.

If Tyson is granted a new trial, Shaw said, the Court of Appeals would "probably set bond, allowing Tyson to get out of jail."

It isn't likely that he would be able to resume fighting, however. When Tyson was indicted, Caesars Palace canceled plans for a Tyson-Evander Holyfield match in November of 1991, well before the trial began.

A year ago, after deliberating 9 hours 20 minutes, an eight-man, four-woman jury found Tyson guilty of rape.

Tyson, 26, had a 41-1 record when convicted. In 1988 alone, he grossed nearly $50 million in earnings, $19 million from the Michael Spinks fight.

Today he earns between 65 cents and $1.25 a day, working in the prison gymnasium as a janitor.

He also has lost most of his assets, his associates report. One said that Tyson owns a home in Cleveland, about 30 expensive cars and a jewelry collection, but that his bank accounts had been depleted by debts, most of them legal bills.

It was said during the trial that one of Tyson's lawyers, Vincent Fuller, took the case for a $1-million fee. Tyson was an undefeated champion when he lost to lightly regarded Buster Douglas in Tokyo three years ago, commanding $6 million to $20 million per fight.

Today, he shares an 80-square-foot cell with another inmate at the medium-maximum security Marion facility.

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