Vanderbilt rape case: New tactics in Cory Batey retrial?

• Cory Batey, charged with aggravated rape and aggravated sexual battery, stands trial Monday.
• Trial is expected to last a week. A previous trial ended in a mistrial.
• Jurors will see the state's smoking gun evidence: video and images of the sexual assault.
• Batey faces 15 to 25 years prison if convicted of aggravated rape.

The retrial of Cory Batey on aggravated rape and aggravated sexual battery charges this week could bring tweaks in his defense strategy, but legal analysts say it will be unlikely to decrease the impact of graphic photographs and videos that are the state's key evidence.

Batey, one of four former Vanderbilt University football players charged with raping an unconscious female student in a dorm on June 23, 2013, is set to stand trial Monday in Nashville. He went to trial last year alongside Brandon Vandenburg, but there was a mistrial. One of Vandenburg's attorneys had a medical issue and last week asked for a delay, prompting the state to move forward with Batey's trial.

So Batey, 22, now faces a jury alone. His trial is expected to last a week. Vandenburg's trial has been set for June 13, according to online court records.

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Batey's trial is likely to unfold with the prosecution's same witnesses, and the state is sure to show the jury the photographs and images taken during the incident. Holding separate trials also means prosecutors can introduce more evidence against each defendant.

And there have been hints that Batey's defense team will present a case blaming alcohol, as they did in the first trial, but it is not known whether Batey will be back on the stand to testify in his own defense.

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Here are things to watch for as the trial moves forward:

Possible defense strategies

Jim Todd, a Nashville lawyer and former prosecutor who has analyzed the case for The Tennessean, said there is no combating what photographs and videos of the rape show happened in the dorm room.

But he said the defense may try to argue the crimes were that of rape, not the more-serious charges of aggravated rape, which require that a defendant is aided by at least one other person. A person with no prior felony convictions faces 15 to 25 years prison for an aggravated rape conviction.

"If there is a soft underbelly of the case it's the one or two people acting in concert," Todd said. "I would get up there and say that’s not what they did."

In jury selection, defense lawyers Worrick Robinson and Courtney Teasley asked jurors their thoughts on people who drink too much. One defense witness, a toxicologist, is expected to testify about how drunk Batey could have been on June 23, 2013.

That tactic could trigger the prosecution to introduce evidence of a racial slur Deputy District Attorney Tom Thurman said Batey made during the assault. Thurman said that statement would show Batey was aware of what he was doing.

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The woman's testimony

The woman who, according to prior trial testimony, was carried into the dorm, put on the floor and then repeatedly sexually assaulted and photographed is expected to testify on Friday as the state's last witness. She previously said she does not remember the incident. The Tennessean generally does not name individuals police say are victims of sexual assault.

Teasley, one of Batey's attorneys, was brought onto the case after the last trial. She may cross-examine the woman.

"Rape is an extremely sensitive issue," Todd said. "It’s often easier and comes across less hostile if a female does the cross examination on a female rape victim."

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Will Batey testify?

When Batey testified in the previous trial, he did not deny his participation in the rape, and even identified himself in some of the images. He said he was drunk and did not remember what happened.

But he fell apart in cross-examination with Deputy District Attorney Roger Moore. Batey's confidence faltered, and he answered many questions saying he did not know or could not remember.

"I don’t think he has anything to lose" by testifying again, Todd said. "I think the goal there was to humanize him and make the jury feel sorry for him."

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What Batey told police, Dr. Phil

Because Batey is not standing trial at the same time as Vandenburg, rules that prohibit the use of evidence that implicates a co-defendant no longer apply. That means prosecutors are freed up to use more details of what Batey told police, if they choose to do so. Batey could also try and shift the blame to Vandenburg, Todd said.

Todd said the statements Batey made to police and what Batey told daytime television personality Dr. Phil in an interview after the first trial could play a role if Batey testifies again. If Batey says something different than what he told police, Dr. Phil or jurors in his previous testimony, prosecutors could use those against him to prompt jurors to question his credibility.

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Case file

Cory Batey, Brandon Vandenburg, Jaborian "Tip" McKenzie and Brandon E. Banks, all former football players, have each been charged with five counts of aggravated rape and two counts of aggravated sexual battery.

Vandenburg also faces charges of tampering with evidence and unlawful photography.

Batey's trial begins Monday. Vandenburg's is scheduled for June 13.

Banks and McKenzie have not yet gone to trial and their cases are pending.

How to follow the trial

Reporter Stacey Barchenger will be tweeting from the courtroom, follow her @sbarchenger. She'll field reader questions on Twitter at Tennessean.com about 12:15 p.m. Monday during a lunch break in the trial. 

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