Experts: Prosecutors face hurdles in Jameis Winston sex assault case

Jameis Winston's attorney, Tim Jansen, called a news conference Thursday to assert while his client did have sex with the complainant, it was consensual.

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Jameis Winston's attorney, Tim Jansen, called a news conference Thursday to assert while his client did have sex with the complainant, it was consensual.

TAMPA — The emergence last week of a sexual assault accusation against Jameis Winston has quickly clouded the reputation of the star Florida State University quarterback, dimming his once-bright Heisman Trophy prospects and focusing the collective glare of reporters from across the country on Tallahassee.

But while the details of an alleged rape in December 2012 have been more than sufficient to set off a media frenzy, it seems the case would be on shakier footing in a court of law.

That was the opinion of legal experts consulted Thursday by the Tampa Bay Times. Based on the limited information that is publicly available about the investigation, they said the case against Winston — bedeviled by poor police work, hindered by a puzzling delay and lacking in corroborative evidence — would be a hard one for prosecutors to prove before a jury.

"The state attorney doesn't want to indict the case because he's going to lose it," said Barry Cohen, a prominent Tampa lawyer. "There's going to be reasonable doubt, unless there's other evidence that can corroborate what she's saying."

So far, Cohen and other attorneys say, the rape accusation against the 19-year-old Winston fits that most challenging category of cases from the standpoint of law enforcement: the "he said, she said" sex assault allegation that lacks convincing physical or circumstantial evidence.

Winston's attorney, Tim Jansen, called a news conference Thursday to assert while his client did have sex with the complainant, it was consensual. The statement came on the heels of reports that forensics analysts had found traces of Winston's DNA on his accuser's underwear. "We never, ever said he wasn't there," Jansen told the Associated Press.

But with the acknowledgment that sex took place, a higher hurdle awaits police and prosecutors: proving that the act was rape.

This could be done using additional physical evidence — such as a doctor's assessment of trauma indicating forcible intercourse, or defensive wounds showing the victim fought her attacker — or witnesses who might have seen or heard a struggle. Evidence that the accuser was so heavily intoxicated that she could not give consent could support a case.

Absent such evidence, most prosecutors would be reluctant to file charges, according to Tampa lawyer John Fitzgibbons.

"In most instances, the prosecutors want more than one person's word against another," Fitzgibbons said. "No jury should be asked to play the role of Solomon and decide who's being truthful."

State Attorney Willie Meggs has said he hopes to make a decision on whether to charge Winston, who was never arrested, before Thanksgiving. In an interview Thursday with the Tampa Bay Times, he indicated that if he does decide to file charges he would do so directly, rather than seeking an indictment from a grand jury. (The latter course could arguably provide Meggs political cover by taking the decision, to some extent, out of his hands.)

"I'm pretty confident that we can arrive at the right resolution of this case," Meggs said. "I don't know what that is right now."

Meggs has also been critical of the investigation performed by the Tallahassee Police Department. While Winston's accuser reported her allegations to police 11 months ago, it was not until last week that police obtained a DNA swab from the quarterback. The State Attorney's Office was not notified of the investigation until earlier this month, after reporters began asking about it.

In a statement this week, the complainant's family suggested they had been warned about the consequences of pressing charges by a detective, who they said noted to their lawyer that Tallahassee is "a big football town."

Such apparent missteps could dog prosecutors, who would be forced to explain to jurors why they should rely on the findings of such an erratic investigation.

"If they really did mishandle it this badly, it would be very difficult for prosecutors to move forward with the case," said Mary Anne Franks, a University of Miami School of Law professor.

Further complications could arise from statements and actions of the complainant in the case, a Tampa Bay-area woman who attended FSU. The Times is not identifying her because she may have been the victim of a sexual assault.

Police say she stopped cooperating with investigators earlier this year, though her family says she was waiting for forensic test results before making a decision on pressing charges.

In her initial statements to police in December, she said her attacker was between 5 feet 9 and 5 feet 11. Winston is 6 feet 4. She did not identify him as her assailant until January.

Police also shared information about their investigation with Winston's attorney as early as February, a controversial move that has given him time, attorneys say, to prepare a consistent story that will stand in contrast to the vacillations of his accuser.

"In a 'he said, she said' sexual assault case," said Stetson University College of Law professor Charles Rose, "credibility is paramount."

Times staff writer Matt Baker contributed to this report. Peter Jamison can be reached at pjamison@tampabay.com or (813) 226-3337. Follow him on Twitter @petejamison.

Experts: Prosecutors face hurdles in Jameis Winston sex assault case 11/21/13 [Last modified: Friday, November 22, 2013 10:06am]

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