Vandy rape case: Attorneys battle claims of slur, urination

As the trial of two former Vanderbilt University football players accused of rape chugs along, issues are coming up that could change what evidence is allowed and what charges the jury can consider.

On Tuesday, defense attorneys for Brandon Vandenburg, 21, and Cory Batey, 20, filed a memo saying the state's indictment was not specific enough to back up the charges against the two men. They are accused of five counts of aggravated rape and two counts of aggravated sexual battery, which are felonies.

In the filing released Wednesday, attorneys say the indictments outline crimes more similar to assault, and those are the charges the jury should consider — not the more serious offenses.

Assault is a misdemeanor, and a conviction could carry a probation sentence. If convicted of the rape charges, the defendants could face decades in prison.

Judge Monte Watkins said he would take up the issue after hearing the evidence presented in the trial.

Meanwhile, disputes over claims made by Deputy District Attorney Tom Thurman in his opening statement might also come up later at trial.

He said Batey finished the attack on the alleged victim by humiliating her. "He makes a racial remark and he urinates on her," Thurman said.

Thurman said he forgot about pretrial discussions barring those comments, but added that the words could be relevant in the future to show Batey knew what he was doing at the time of the alleged incident. Batey's defense has said he was drunk and "blacked out" the night of the alleged rape.

Thurman said rape is about power and control and the alleged comment and urination would show Batey's role in that light.

Attorneys for Batey and Vandenburg said evidence to back up those claims was sketchy and could create problems of one defendant having to testify against the other.

Fletcher Long, who represents Vandenburg, said the statement alone "inflames and drives ire" against his client.

Worrick Robinson, Batey's attorney, said the acts have nothing to do with the charges against Batey and should not be allowed in court.

The judge said he would give a "corrective instruction" to the jury about the racial comment. He said it was not relevant to the case.

"If this case indeed had racial overtones to it, it would indeed be relevant," he said.

Watkins said if Thurman's statement about urination was not corroborated by evidence at trial he would issue another "corrective" jury instruction.

Trial so far

Wednesday was the first full day of testimony in the case and the third day of trial.

Only one witness testified in court. At the end of the day, police detectives were left waiting in the hall without ever seeing the witness stand. Some people watching the trial brought in cushions, already tired of the wooden benches.

Vanderbilt University Lt. Donnie Harville was on the witness stand all day describing surveillance video to jurors.

According to Harville's testimony, it shows the four defendants in the case — Batey, Vandenburg, Brandon E. Banks and Jaborian "Tip" McKenzie — entering and leaving from Room 213 between about 2:30 a.m. and 3 a.m. on June 23, 2013. That's the time and place the rape allegedly occurred.

Banks and McKenzie, both 20, have not yet gone to trial. Both have pleaded not guilty.

Harville said the video also showed the victim several hours later, coming and going from the neighboring dorm room where Jake Bernstein, a fellow football player, lived.

In cross-examination Wednesday afternoon, defense attorneys showed jurors another camera angle. Robinson asked if it looked like Batey, his client, stumbled at one point, and whether it looked like several people were turning, perhaps to acknowledge someone in an office inside the dorm entrance.

He also asked questions suggesting the alleged victim was clinging onto Vandenburg as he carried her into the dorm.

Harville, however, said he thought Batey was walking normally, couldn't tell if people were talking to someone in the office and said it did not look like the victim was grasping onto Vandenburg.

The trial resumes at 9 a.m. Thursday

Reach Stacey Barchenger at 615-726-8968 or on Twitter @sbarchenger.