NEWS

Vandy rape case argument: Too drunk to be responsible?

Tony Gonzalez
tgonzalez@tennessean.com

Can you be too drunk to be held responsible for your actions?

That's the latest argument being floated in defense of Brandon Vandenburg, one of four former Vanderbilt University football players charged in a June 2013 campus rape.

But Nashville prosecutors want to stop the theory before it goes too far.

A new court filing asks a judge to block a Los Angeles-based psychologist from testifying about Vandenburg's drunkenness on the night police say he took part in the rape of his unconscious 21-year-old girlfriend in his dorm room.

Prosecutors say the psychologist's two-page report — in which she essentially argued that Vandenburg was too drunk to know what he was doing — is "purely speculative" and not based on science. The district attorney general says the psychologist relied only on a conversation with Vandenburg and surveillance video to come to her conclusion.

She shouldn't be considered an expert because her opinions about intoxication and what's visible on video wouldn't assist jurors in understanding what they're seeing, prosecutors said.

Although Judge Monte D. Watkins hasn't ruled on the request, in court two weeks ago he responded briefly when the drunkenness argument surfaced. He challenged the defense to explain when intoxication has ever been used to justify a crime in Tennessee.

"Intoxication is generally not a defense to prosecution of a crime, particularly when the defendant was 'voluntarily' intoxicated," said David Veile, a Franklin criminal defense attorney and continuing legal education instructor.

Veile said intoxication wouldn't help Vandenburg clear himself of recklessness, which is one of several factors in prosecuting aggravated rape.

"(Defendants) cannot later claim that they were 'so drunk' that they were unaware of a substantial risk," he said.

Related: James Franklin changes story about rape case videoLegal arguments aside, the psychologist's report also provides a new account of what happened when Vandenburg and the woman arrived at Gillette Hall after authorities said they were drinking at The Tin Roof bar.

Based on a viewing of campus surveillance video provided to the defense team, a "very intoxicated" Vandenburg drove the woman's black Mercedes through an intersection without stopping and parked near a police vehicle.

Vandenburg bumped the woman's head on the car door before seeking help from three other men to take her inside. He also hit his own head on an elevator and vomited in a bathroom, "intoxicated to the extent that he could not have possessed the required culpable mental state to form intent to be held criminally responsible for the actions of the others that were in his room," wrote psychologist Stefanie Stolinsky.

Although other drugs don't surface in the Stolinsky report, Assistant District Attorney Tom Thurman said previously in court that Vandenburg was also on cocaine the night of the sexual assaults.

Defense wants to block victim testimony

Meanwhile this week, defense attorneys for Vandenburg and co-defendant Cory Batey filed motions objecting to a live video stream used in court earlier this month that allowed the alleged victim to watch from outside the courthouse.John Herbison, representing Vandenburg, said the prosecutors "consciously and deliberately flouted" court procedures by communicating to the judge without the defense team's knowledge.

Herbison said the video stream — a first-time arrangement by prosecutors in a sex assault case — should have been discussed by all parties. He asked that the victim be prohibited from testifying at trial.

Batey's attorney, Worrick Robinson, also protested the video feed. Robinson's filing says attorneys had argued over whether the woman would be present for the court hearing. Although prosecutors said she didn't have to be there — and the defendants had to pay her a witness appearance fee to attend — only after the court hearing did the defense team learn, via a Tennessean article, that she'd watched via video stream.

Although victims have a right to attend hearings, Robinson said the video feed stretches the meaning of being "present" in court.

He also raised concerns about whether microphones in the courtroom picked up private conversations between defense attorneys, including during breaks, allowing the woman to hear them via video.

Robinson wants to disallow video streams.

The flurry of filings come as trial approaches for Vandenburg and Batey on Nov. 3. The men went to court earlier this month to try to block certain evidence against them from appearing at trial, but the judge mostly rejected their efforts in orders filed Monday.

Two other defendants, Brandon Banks and Jaborian Mckenzie, have separated their trials.

Reach Tony Gonzalez at 615-259-8089 and on Twitter @tgonzalez.