By: Ken Hissner
Pennsylvania boxing judge Lynne Carter started judging in March of 1982 in Philadelphia and in September of 1982 in Atlantic City, New Jersey, before becoming a world renowned boxing judge.
Carter has officiated some 739 bouts in those 36 years. She joined the IBF in November of 1983, at their Founding Convention, in Newark, New Jersey.
In 1984, Carter was honored by the Philadelphia Bar Association as a Woman Pioneer in Boxing. Recommended by the World Boxing Association.
“Lynne Carter has been my friend for a long, long time. I originally trained her in becoming a judge. She is a lovely woman and am proud how she leads her life. I wish her only the best,” said Carol Polis (United States first lady boxing judge)
In February of 1988 Carter judged her first world title fight for the International Boxing Federation featuring Greg Haugen and Vinny Pazienza in Atlantic City. In August of 1990 she worked a World Boxing Council title fight in Las Vegas, Nevada. Main event was Maurice Blocker and Marlon Starling.
“I have known Ms Carter for over 20 years. Always has a friendly greeting and I don’t think I have ever seen her unhappy. She is very passionate about the sport of boxing and from what I have seen in working corners all these years, is that she is very attentive to the fights she is judging and is very fair in her assessment of scoring every round. Lynne is an all-around classy lady,” said Joey Eye. (Top cut man)
In April of 1989 Carter judged the inaugural World Boxing Organization title bout between Doug DeWitt and Robbie Sims. In October of 1988 she judged her first title bout out of the US in Denmark with Greg Haugen and Gert Bo Jacobsen.
In February of 1984 Carter judged an IBF title fight in South Africa featuring Kennedy McKinney and Jose Rincones. In May of 1998 she judged in Italy in a World Boxing Union title fight. She has worked numerous WBU title fights.
“She emphasized everything that the integrity of a judge should be today. I’ve paid attention to her crafts and she knows what she is looking at and has covered some of the biggest fights world-wide,” said Elmer Smith (Philadelphia Sports writer for 25 years).
She became a judge for the NJ Athletic Commission. “Jersey” Joe was commissioner and he came back to the office the next day and said he saw this lady who looked good for a judge and he told her he would talk to me. We licensed her and she has done quite well. We started with smaller sites and she proved to be very good. Later when I was President of the IBF asked her to do a seminar for judges and she did the best presentation of anyone I have ever seen. She brought in video tapes of controversial one’s and challenged the judge to score the rounds. I saw the improvement to some of the officials she did the seminar with. I sent her to different countries like South Africa and she did a splendid job there. She was always a good student and follows the rules and procedures that should be done to a tee,” said Bob Lee (Former President of the IBF).
Carter has worked in countries such as Denmark, Germany, Italy, Japan, Canada, Mexico, Bermuda, the UK and South Africa. The title bouts were with the IBF, WBC, WBA, WBO, WBU and WBF.
“Lynne is not ONLY a pioneer in boxing but her work outside the ring is even more impressive. She is the founder and CEO of “A Fight for A Cause Foundation,” which has raised thousands for victims of Katrina, Autism Research and has helped establish an afternoon school program for Autistic children in West Philadelphia. Getting back to her judging career, after over 35 years she still judges several World title fights each and every year, so she must be doing something right,” said Henry Hascup. (President of the NJB HOF)
Some of the bouts Carter judged were for such boxers as Gilberto Ramirez, Mickey Ward, “Prince” Charles Williams, Bobby Czyz, Oleksandr Gvozdyk, Billy Joe Saunders, Riddick Bowe, Andre and Anthony Dirrell, Marco Huck, Arthur Abraham, Sadam Ali, Gary Russell, Jr., Sergio Martinez, Zolt Erdei, Tomasz Adamek, Yuriorkis Gamboa, Adrien Broner, Paul Williams, Juan Manuel Lopez, Shannon Briggs, Bruce Seldon, Roy Jones, Jr., Virgil Hill, Kassim Ouma, Waldimir Klitschko, Samuel Peter, Zab Judah, Lamon Brewster, Charles Brewer, James Toney, Bernard Hopkins, Tony Tubbs, Lennox Lewis, Dwight Muhammad Qawi, Pernell Whitaker, Maurice Blocker, Hector Camacho, John David Jackson, Marlon Starling, Leslie Steward, Milt McCrory, Buster Drayton and Marvis Frazier.
Carter served her apprenticeship in Philadelphia under the tutelage of Pennsylvania Commissioner James J. Binns, Executive Secretary Francis Walker and Chief Inspector Charles Campbell.
Carter was trained by “Smokin” Joe Frazier, former Heavyweight Champion of the world, on the basics of boxing and Carol Polis, first female Boxing Judges in the United States. She received her professional license in March of 1982.
Carter trained and assisted upcoming female apprentices in Pennsylvania and New Jersey. She was the first female boxing judge in Connecticut licensed at the Foxwoods Casino – Mashantucket Pequot Reservation.
Carter was a Presenter for the State of New Jersey to conduct the Judge’s Training Seminar on “Boxing is Our Business” under Commissioner Larry Hazzard Sr. Also a Presenter for International Boxing Federation to conduct a Training Seminar on “What Constitutes a Knockdown” for Judges and Referees. For the ING in Atlanta. A co-presenter for the International Boxing Federation on the “10 Point Must System” and the “Boxing Criteria for Judging” for the IBF in Rhode Island.
Carter was the First African American Female to officiate in the State of Pennsylvania on an international level. To officiate in the World Boxing Association, World Boxing organization and the World Boxing Union. To officiate in the State of New Jersey. Licensed in Mixed Martial Arts in the State of New Jersey. Licensed in the World Boxing Foundation. To make World History in the Sport of boxing – First time in the WBA history of boxing with all female officials.
Carter’s Honor & Awards were so numerous starting with the “Smokin” Joe Frazier Award of some twenty she has received. She has be assigned in the United Kingdom, Africa, Asia, South America and Europe. In the United States she has worked in Pennsylvania, New Jersey, Las Vegas, Texas, Maryland and Arizona.
Carter has done Fundraising for Autistic Children, Clean Block Captain in the City of Philadelphia. Community and Political Activist. Founder, Vernon House Cultural Committee and a Committeewoman.
By Ken Hissner
This writer has been writing for approximately 10 years. I sometimes say “the only thing more crooked than boxing is politics”. For example we see commissions that are not the most honest favoring certain people over others. By messing with managerial contracts favoring the managers and one sided hearings are a pair of examples what happens. One for instance in PA was holding a hearing for a boxer who was not allowed to have anyone but an attorney which he had. The manager came in with a non-attorney and was allowed an unlicensed backer to be allowed to listen in on an intercom. Obviously the boxer lost. The Boxing Director ruled in this case.
Pertaining to a referee I always remember Mills Lane when he did the rematch between Holyfield and Tyson. Lane knew Tyson had fouled Holyfield biting his ear and when over to the then Nevada commission head who more or less said “how would you stop a fight of this magnitude for this MINOR infraction?”
I believe that same commission head went to a much more violent sport like MMA after that. Mills returns and tells the fighters to continue and Tyson proceeds knowing he didn’t get penalized for what he did takes it one step or should I say 10 times further and bites off a piece of Holyfield’s ear knowing he is losing and will not be able to overcome Holyfield for victory. Mills had actually gone to the Tyson corner after the first infraction and they seemed to threaten him if he stopped the fight. Mills wasn’t a referee much longer after that fight.
Another example being Nevada who seem to have the most prestigious fights yet when referee Robert Byrd allowed Andre Ward to initiate 46 clinches against Sergey Kovalev and was never deducted “one point” just several warnings. That was in their first fight. All three judges had Ward ahead by a point so if just one point was deducted by Byrd for holding it would have been a draw and Kovalev would have retained his title. I had Kovalev ahead by 5 points based on 8-4 in rounds plus the knockdown. Go to www.youtube.com and see what I mean.
Byrd is without question the slowest referee to react of the Nevada referees. Was he being racist in his actions favoring the black fighter over the white fighter? Why Kovalev’s management or promoter allowed a black referee since Kovalev had the 3 titles and Ward none is beyond me. I suggested once to a manager who had the black fighter against a Spanish fighter to get a neutral person such as a white referee. The fight was great and close and the referee made no difference and their fighter won a decision.
It’s been my experience when I was a matchmaker for a short period of time a ring physician came over prior to the fight and told the referee who by the way now serves as a commissioner to stop the fight if the one fighter in particular “looks” like he is hurt. I told the ring physician “you can’t tell a referee that in advance”. The fight was stopped in the first round without that fighter being cut or knocked down. The promoter had to have a hearing based on too many stoppages on this promoter’s card. The top promoter who had just as many stoppages as this one was also suspended for 30 days.
The commissioner Jimmy Binns, Sr. held that meeting. I was told by the promoter Bob Connelly not to attend. I attended and sat at the table directly across from Binns. When I spoke up and informed Binns that the referee at the table Rudy Battles (now PA Boxing Commissioner) was told by Dr. Davidson to stop the fight if the boxer even looks hurt Binns said “what do you know about boxing?” I replied “maybe you would know something about boxing if you were to come to the weigh-in.” I had my matchmaker’s license revoked for that remark.
When Binns was replaced by Harold McCall he came to me during a boxing event and said “come into my office for I want to reinstate your matchmaker’s license”. I never did go in and never did matchmaking again. It is the hardest position of fights for the match-up may look good on paper but you never know how the fight is going to be.
Pennsylvania had a good secretary on the commission in Frank Walker. He worked behind the desk not running the shows. Now during Binns time he and Walker’s assistant were sent to work out of Harrisburg some 100 miles away instead of Philadelphia where the commission office was. Both Walker and his assistant suffered health problems and were replaced by Binns. Binns put Greg Sirb in charge as Boxing Secretary and he changed his title to Boxing Director. He runs all the events unless two are on the same night while the three commissioner’s sit there never correcting anything he does. When I let it be known in my report the entire press were told by a promoter you’ll never to sit at ringside again the promoter should have the right to where the press sits and not the Boxing Director.
This writer has found infractions on commission members and brought it to the attention of the state without any action being taken or even considered. It’s not what you know but who you know in this business too many times. I will continue to write what I see and not what the promoter or commissioner wants to see.
This writer has been banned from press row by two promoters because they “don‘t like what I write”. Guess what? That hasn’t stopped me from writing up their shows as I see them!” When Philadelphia had back to back shows with 14 bouts and 13 ended it knockouts in a bunch of mismatches this writer questioned it causing one of the promoters say “you should write what you see” while the other pulled my press credentials.
Recently in VA a rarity happened when Lamont White, 0-7, scored a knockout win over Roger Belch 8-0 at Norfolk on May 13th. Why the commission approved of the fight in the first place is strange but the way it turned out was even stranger.
Just thought I would “air out” some of the things writers can be faced with when they are “honest to a fault!”
If You’ll Take the Win Then You Have to Take the Loss
By Coach Bruce Babashan
I have been training professional and amateur boxers for many years. In totality my fighters have competed in thousands of fights at nearly every level in the sport at one time or another. My athletes have competed for professional world titles, have been in the Olympics and have appeared at countless club and amateur level shows and tournaments.
A few years back, I was part of the organizing team for a national amateur tournament being held in Michigan. One of my roles that week was to be a liaison between the organizing committee and any coaches who had questions or wanted to dispute a decision. If you have ever been to any boxing tournaments you know there are always disputes… and many times bad decisions, as well.
It just so happens that the day before the tournament began I was meeting and greeting many of the coaches when I met and had a very nice chat with a coach who had two fighters there, one being his own son. He was a great guy!
The next day I noticed that his son was fighting so I made my way over to that ring to watch the action. His son was a very good fighter, well trained and very sharp. His opponent was a little less refined, awkward with strange timing and movement…but still effective in a way.
It was a very competitive fight and as I watched I could see that both sides were seeing it the way they wanted to. The man I had spoken with the day earlier was very pleased with his sons performance because he felt his son looked like “the real boxer” and was throwing tight combinations and looking the more technical of the two. Yet, when I walked into the other corner the coaches there felt their boy was winning and they were imploring their kid to “keep it up.”
After the bell sounded to end the fight both boys jumped for joy and eventually met back in the center of the ring with the referee awaiting the judges’ decision. Both boys were sure they had won because their corners had told them they had. So they waited with anticipation in the center of the ring for the judges to announce the decision.
Soon the announcer came on the microphone and announced…”the winner… out of the BLUE corner” and the boy and his coaches jumped for joy. The problem was the more technical fighter and the one I personally felt had won… lost! Needless to say, his father was very upset.
I knew it was going to be an issue so I immediately went to him to try and calm him down but it was to no avail. He was very angry and the more I talked the more I could see he was getting more and more agitated. I stepped back and the father and son gave way for the next fight that was entering the ring and I gave them a few minutes to calm down before trying to talk to the father.
Here is what I said:
I said “I thought you told me you were a boxing guy and you had been coaching for twenty years?” ”That’s right” he said….”I’ve been coaching for more than twenty years… what difference does that make?” I said “you mean to tell me in all those years you never won a fight you felt your fighter had lost?” It was clear what I said hit a nerve. “Of course I have” he said. I went on “when you won did you run across the ring and give the trophy to the other kid or did you go the officials and demand they reward the other fighter with the win?” Struck by the comments he looked at me and said “of course not.” I then asked; “do you feel we have some reason to be against you or your son?” “No” the man replied “but nonetheless the decision stinks” he said. “That’s probably something we can agree on” I said “but its not because anyone was against you!” I went on “let me ask you another question, you have been here all day, have you noticed a rash of bad decisions?” “Well, no” the man said…”but this one sure was”. “Maybe,” I said. I went on “let me ask you another question…in all those years I assume you’ve watched hundreds maybe even thousands of professional fights…right?” “Thousands” the man replied. I said “in all those fights you never once disagreed with the judges or the majority of fans about the winner.” “Of course I have” he replied.” “Then since we agree we don’t have any reason to be against you and since there hasn’t been a rash of bad decision today is it just one of those cases where you saw the fight differently then the judges…can’t it be just that simple sometimes?”
He was a smart guy and the logic of my point resonated with him. After a few more minutes he had calmed down and he went to prepare his next kid for his upcoming fight. We parted friends.
Here is the point; these things happen in boxing. No one is to blame, no nefarious intent, no incompetence on the part of judges… just a different point of view. The judge’s chair comes with a different perspective and set of responsibilities than you and I have as spectators. The judges are just human and for the most part they get it right most of the time. The fact is they are also as vulnerable as you and I are to our own biases and preconceived notions and despite the fact we want to believe we have a clear cut set of criteria on how to judge the big fights, the truth is we do not…and never will.
Complete objectivity is difficult to attain. It’s inhuman in a way to be totally objective. We have our opinions and views of these fights and they are shaped by many things and we need to stop acting like the sky is falling every time there is a decision the majority of us might not agree with.
I realize there was a lot of money at stake. I realize the history of our sport requires we remain vigilant at all times to keep the criminal elements away but to be honest, bad decisions and controversy are as much a part of boxing as the hook and the jab…and we like it that way!
I loved the fight the other night. It was exciting, bloody and fun! I felt PacMan won but both men emerged out of it ok and it was good for the sport.
As for the decision, “If you’ll take the win, you have to take the loss!“
Coach Bruce Babashan
Professional Boxing Coach/Trainer
USA Boxing Coach
Mike Tyson’s Appeals of His Rape Conviction, Revisited
By Adam J. Pollack
To this day, debate continues regarding whether or not former world heavyweight boxing champion Mike Tyson received a fair trial which lead to his conviction for sexually assaulting Desiree Washington. Perhaps the best information regarding the debate is from the appellate court decisions themselves.
Refusal to Allow Impeaching Witnesses to Testify
In his appeal,Mike Tyson argued that the trial court erred when it refused to permit him to call as witnesses three women who came forward during the course of the trial: Carla Martin, Pam Lawrence, and R Renee Neal, all of whom would have contradicted Desiree Washington’s version of events.
Martin was anticipated to testify that Martin and Lawrence were in a car parked in front of the Canterbury Hotel at approximately 1:40 a.m. on July 19, 1991, waiting for a friend, Renee Neal. While there, Martin observed a limousine pull in front of the hotel. Martin saw a man and a woman “hugging and kissing” in the backseat of the limousine (who turned out to be Tyson and Washington).Ms. Martin exclaimed to Ms. Lawrence that the two were all over each other. Martin would testify that she then observed the African-American woman with shoulder-length curly hair and Tyson, whom Martin immediately recognized, exit the backseat of the limousine and enter the hotel. As Tyson and the woman entered the hotel together, Martin saw Renee Neal, who was exiting the hotel, bump into the couple. Martin also observed that, as the couple entered the hotel, the woman “move[d] toward Mr. Tyson until their upper bodies appeared to be touching, and she appeared to put her arm in Mr. Tyson’s.”
Lawrence, if called as a witness, would testify that she heard Ms. Martin remark that the two people in the limousine were all over one another. Ms. Lawrence looked over and saw two persons sitting in the backseat of the limousine in close proximity to one another.
Neal’s testimony would be that she “observed the man and woman [who had exited a gold limousine] holding hands as they entered the hotel.”
Their testimony would have contradicted Desiree Washington’s version of events, for she testified that Tyson hugged and kissed her when she first got into the limousine at her hotel, but no further physical contact occurred in the limousine thereafter, and that she walked into his hotel behind him, not arm-in-arm or holding hands.
The trial judge ruled that the witnesses had come forward too late, and that the Defendant took too long to notify the Court about their existence and intent to use them. The trial began on January 27, 1992. The witnesses came forward to the defense team on January 30, 1992. The prosecution was first notified about the witnesses on February 2, 1992.
In Tyson v. State, 619 N.E.2d 276 (Ind.App. 2 Dist., 1993), in a 2 to 1 vote, the Indiana Court of Appeals refused to reverse his conviction and grant Tyson a new trial. The Court agreed that it was clear that the anticipated testimonywould have contradicted the testimony of Washington that there was no physical contact between her and Tyson after the limousine left her hotel.
Nevertheless, as impeaching evidence, the Courtof Appeals held that the excluded testimony was cumulative. Washington was impeached on other points, including the details of the rape. For example, fellow Miss Black America pageant contestant Madeline Whittington testified that Washington told her she was going out with Tyson and stated, “This is Mike Tyson. He’s got a lot of money. He’s dumb. You see what Robin Givens got out of him.”
Pasha Oliver, one of Washington’s roommates during the pageant, testified that Washington told her Tyson restrained her during the rape by pinning her wrists together and covering her mouth with his arm or hand, and that she asked Tyson to take her home after the rape and he refused, which made her angry. Again, Washington expressly denied both of these things.
Further, there was additional testimony that Washington gave conflicting accounts of how the incidents in question occurred.
The majority noted that the dissent argued that the excluded testimony was not cumulative, but “is different in kind and character from other evidence adduced at trial.” It made this statement based upon the conclusion that “the manner in which Tyson and D.W. acted toward each other shortly before the acts complained of has extreme relevance to whether or not Tyson might have reasonably believed, from all the surrounding circumstances and events, that D.W. consented even though as a factual matter she did not consent.”
Yet, ultimately the Court of Appeals held that the evidence of the conduct that occurred between Tyson and Washington in the limousine before they entered the hotel and their conduct as they entered the hotel was not crucial, considering the spectrum of evidence that corroborated the determination that Tyson reasonably and honestly believed Washington would consent to sexual conduct in the future, and the spectrum of impeaching evidence that was admitted during the course of the trial, including Washington’s inconsistent descriptions of the critical details of the conduct that occurred in Tyson’s hotel room. Therefore, the Court of Appeals held that the trial court did not abuse its discretion in determining that the testimony of Martin, Lawrence, and Neal was not vital to Tyson’s defense.
Exclusion of Evidence of Desiree Washington’s Prior Sexual History and Incidents With Her Parents
Tyson also argued that the State’s examination of Washington, as well as its opening and closing arguments, left the jury with the impression that she was a “sexual innocent whose religious beliefs prohibited any premarital sex and who was far too naive to understand the implications of going to Tyson’s hotel room in the middle of the night.” Tyson cited portions of Washington’s testimony which he asserted created an impression of innocence, including that she was active in her church, a doer of good deeds, and an award-winning student. He contended that the State’s characterization of her during opening and closing arguments as a “kid” with “eyes this big” who put on her “jammies” before bed and who expected to go home “the same girl” after her date with Tyson further enhanced this image.
Hence, he argued that he should have been able to challenge and impeach this impression of an “angelic image” by cross-examining her about her sexual history and prior sexual conduct. However, the Court of Appeals held that Tyson’s legal counsel failed to preserve the issue, even though it specifically requested to be allowed to enter such evidence into the record, and the judge refused.
Tyson further argued that the trial court erred in preventing him from referring to incidents between Washington and her parents which would have given her a motive to fabricate the rape charge. Again, the Court of Appeals held that counsel failed to preserve the issue properly, even though his counsel had requested to admit the evidence and make an offer of proof, which request was denied.
Admission of Hearsay Evidence
Tyson argued that the trial court erred by admitting into evidence an audio tape of the phone call Washington placed to 911 24 hours after he allegedly raped her. The Court of Appeals ruled that at most, it was harmless error.
Erroneous Jury Instructions
Tyson argued that the trial court should have provided the jury with several requested jury instructions, which was prejudicial to him. He wanted instructions regarding mistake of fact and reasonable belief. He argued that even if in fact Washington in her own mind was not consenting, if a reasonable person in Tyson’s position mistakenly believed that she was consenting, then he could not be found guilty.
Tyson testified, “I believe that we had both made it clear earlier that day what was going to happen. … I’m sure we made it clear.” Tyson testified that earlier in the day, soon after he had met Washington, he explained to her “that I wanted to fuck her,” and she responded, “Sure, just give me a call.” At nearly 2 a.m., he picked her up from her hotel, she went with him to his hotel, and they went into his hotel room and had sex.
He said Washington responded in a positive manner to his kissing in the limousine while riding to his hotel, and that while he was kissing her in the hotel room she was “dropping her jacket, you know, getting her jacket off quick.” He also testified that he complied with Washington’s request not to ejaculate in her and that he asked her to stay the night.He further testified:
Q.: Did you undress her?
A.: I did.
* * * * * *
Q.: What happened then, Mr. Tyson?
A.: As I’m kissing her, she’s moving fast. I’m kissing her. She dropping [sic] her jacket…. I’m kissing on her neck and I’m kissing her around the ears, the back of her neck, her chest, her nipples, her stomach, and I believe she had a white shirt on as well. She’s trying to get that off. So I came back while she was taking it off and she had taken off those shorts–she had some shorts. She took off her shorts. I took my shirt off at the time. She had took [sic] off her underwear and the underwear dropped to her knees, and I pulled the underwears [sic] off, and then I took off–I had shorts that I had took off [sic]. I continued kissing on her body.
Q.: Then what happened?
* * * * * *
A.: We were having oral sex a little while, and she had told me to stop, and she had told me to come up, come up. She said, “No, come up.”
Q.: Meaning what?
A.: Indicating that she wanted me to insert my penis in her.
* * * * * *
Q.: And what did you do then?
A.: She had told me not to come in her. She said, “Don’t come in me, don’t come in me. I’m not on the pill,” and I pulled back and I ejaculated on her stomach and her leg.
Washington testified that when Tyson saw she was crying during the rape and after the two acts of criminal deviate conduct (oral and digital sex), he asked if she wanted to “get on top,” to which she responded in the affirmative without “then explaining to him that she agreed to go on top only because she thought it would enable her to get away,” and that she asked Tyson to, “Please put a condom on” and said, “I don’t need a baby.” Tyson argued that such statements would give a reasonable person the belief that she was consenting, even if she was not.
Washington’s testimony on direct examination included:
A.: I walked out of the room, out of the bathroom … and then I glanced over and I saw the Defendant in his underwear….
Q.: What was your reaction?
A.: I was terrified.
Q.: What did you say?
A.: “It’s time for me to leave.”
Q.: Like that?
Q.: And his response?
A.: “Come here.” And he grabbed my arm, and then he was, like, “Don’t fight me. Come here,” and then he stuck his tongue in my mouth.
Q.: What did you do?
A.: Just pulled back…. He started saying, “Don’t fight me.” I tried to fight him…. It was like hitting a wall. It didn’t do anything.
Q.: What did he do next?
A.: He started taking off that outer jacket that I had on. He started taking that off, and I’m like, “Get off me. Stop. Get off me,” and he just kept going. Then the next thing I knew, he put me down on the bed or slammed me actually down on the bed, and he started grabbing the rest of the stuff down, and he kept kissing me and kept saying, “Don’t fight me, don’t fight me, relax, don’t fight me.”
Q.: Did you try to negotiate with him?
A.: Yeah. That was after he put his hands in me, his fingers, in my vagina.
Q.: Okay, How did he get his hand down there?
A.: He was between my legs, and he just put his fingers in there, started jamming them in really, really hard, and that’s when tears started to come to my eyes, and I was, like, “Owww, please, stop.”
Q.: Did you mention to him that you were worried about pregnancy?
A.: Yeah. That was–he started to pull out his penis, and he was over me, and I just freaked out and I started saying anything because I knew that hitting him and stuff wasn’t going to help me. So, I just started saying anything that I could think of, like, “Please, I have a future ahead of me. Please, I have college. I can’t have a baby. What are you doing?” You know, “Please put a condom on.” I was just–anything to get him off of me so that I could get out of there, and he was just, like, “Well, I don’t have anything and I know that you don’t.” I’m like, “Please, I don’t need a baby. I don’t need a baby.” I was begging him. I was saying anything that I could say to him, and nothing worked. He was just, like, “So we’ll have a baby,” and he just jammed himself in me…. [H]e exposed his penis.
Q.: What did he do then?
A.: He jammed it in my vagina.
Q.: What did you do?
A.: I screamed out–not screamed, but I was like, “Owww,” and then I just started crying and I–
Q.: Pain again?
Q.: Did you tell him you hurt?
A.: Yes…. It was just excruciating. It just hurt. He just slammed himself in me. It just felt like someone was ripping me apart. I don’t know how to explain it. It just hurt.
Q.: Okay. What efforts, if any, did you make to try to get loose, to try to get away?
A.: I was trying to punch him and stuff like that. I was trying to back up. I was trying to do a lot of things. Nothing worked.
Q.: Okay. What’s he doing while you’re trying to do all this?
A.: He was telling me not to fight him, and then he started saying, “Don’t fight me, mommy. Don’t fight me,” and he just kept going. He just kept slamming himself really hard.
Q.: Did you change position?
A.: At one point, he said, “Oh, you’re crying,” and he stopped for a second and his voice started to, like, be a little bit normal again, and then he just turned evil again, and really mean, and his eyes got all mean, and he just kept going really hard, and then he goes, like, “Well, do you want to be on top?” and I thought I could get away. So I said, “Yeah,” and I was crying when I said it, and he flipped over. Then I tried to get away, and he was, like, “I told you not to fight me,” and he slammed me back down again and rolled back over again.
Q.: Okay. Do you have any idea as to how long he remained inside of you?
A.: Until he was done…. Until he ejaculated.
Q.: Did you see him do that?
Q.: Tell us what he did.
A.: He pulled back and there was stuff coming out, and he said, “I told you I wouldn’t come in you. Don’t you love me now.”
Q.: He said, “Don’t you love me now?” and what was your response?
A.: I just looked at him like I was disgusted.
Tyson argued that “[a] properly instructed jury could have found (or entertained a reasonable doubt) that these exchanges could have led a reasonable person to believe that Desiree Washington consented, even if in her own mind she may not have been consenting.” The Court of Appeals upheld the trial court’s rejection of his proposed jury instructions, holding that the facts did not merit such instructions.
Prejudicial Closing Argument
The defense argued that prosecutor Greg Garrison improperly prejudiced the jury when in closing argument he read edited portions of U.S. Supreme Court Justice White’s dissenting opinion in United States v. Wade,388 U.S. 218 (1967). The portions read stated,
“Law enforcement officers have the obligation to convict the guilty and to make sure that they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of a crime. To this extent our so-called adversary system is not adversary at all, nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. The defense counsel needs to present nothing, even if he knows what the truth is. He need not furnish any witness to the police or reveal any confidence of his client or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure, or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in worse [sic] possible light regardless of what he thinks or knows to be the truth. In this respect, as part of our modified adversary system and as part of the duty imposed upon honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relationship to the search for the truth.”
The Court of Appeals held that the objection was not preserved properly, because Tyson’s counsel objected only to the prosecutor reading case law in general, not the particular case.
Selection of the Judge by the Prosecutor
Tyson argued that he was denied due process because the prosecutor was able to select the trial judge who would preside over his case. He argued that the current system of assigning criminal cases to particular divisions in Marion County erroneously permits the prosecutor to determine the particular room within the criminal division to which a case is assigned, for the prosecutor knows which judge handles cases in which room. It was fundamentally unfair to allow the prosecutor to choose the judge he wanted;the inference being that a different judge might have issued different rulings throughout the trial.
On July 29, 1991, the Marion County prosecutor filed a petition requesting that a special grand jury be convened to investigate Washington’s allegations against Tyson. Pursuant to Indiana law, IC 35-24-2-14 (1988), the prosecutor could file this petition with any judge in Marion County; and he chose to file it with Judge Gifford, who was presiding in Room 4 of the criminal division. In this way, the prosecutor selected the particular room and, in the absence of a valid motion for change of judge, selected Judge Patricia Gifford as the presiding judge.
The Court of Appeals ruled that because Tyson failed to show that he was prejudiced in any way by the selection of the particular room or judge, he was not deprived of his due process rights.
And yet, the Court of Appeals also said,
“However, we strongly urge the criminal division of the Marion County Superior Court to change the method by which cases are assigned to the rooms in the division. The existing system of filing cases is totally inappropriate and must be abandoned in favor of a system in which the prosecutor cannot control the assignment of a case to a particular judge. Presently, the criminal division of the Marion County Superior Court lacks the appearance of impartiality that is required to maintain the confidence of the public and the accused in the system.”
Despite this “totally inappropriate” method which “lacked the appearance of impartiality” required to maintain the confidence of the public and the accused in the system, Tyson’s conviction was not reversed.
The Dissenting Opinion
In his strong dissent from the majority opinion, Judge Patrick Sullivan argued that Tyson’s conviction should be reversed and he should have been granted a new trial. He believed that Tyson had not been afforded a fair trial or a level playing field. “My review of the entire record in the cause leads me to the inescapable conclusion that he did not receive the requisite fairness which is essential to our system of criminal justice.”
This judge believed that the three excluded witnesses for the defense should have been allowed to testify. Defense counsel could not have revealed the witnesses sooner, because they were not yet known. Further, they had a duty to conduct a reasonable investigation before seeking to add witnesses. They acted reasonably and diligently.
“Not only was there no discovery order breach, there was no delay, substantial or otherwise. Even if there were some degree of unexplained delay, given the absence of bad faith upon the part of the defense, the State at most would be entitled to a continuance. … Failure to request a continuance constitutes a waiver of an alleged discovery breach. … Not only did the State not seek a continuance, it categorically stated that it did not want a continuance.”
This judge recognized the potential importance of the excluded testimony:
“The State’s position with respect to the prejudice to its presentation of evidence becomes somewhat schizophrenic, and most certainly inconsistent. On the one hand, the State attempts to diminish the importance of the testimony of the three witnesses by asserting that it would have had minimal impact upon the issues and was meaningless as merely cumulative. On the other hand, the State has acknowledged that the excluded testimony might have grave implications for a successful prosecution. It so indicated by emphasizing the great lengths to which the State would have to go to combat this testimony. It is clear that the State did not think the evidence to be merely cumulative. The State was very concerned “given the impact of these witnesses on this case, given the notoriety of this case, given what this case is all about…. These witnesses clearly would have been telling a story wholly different than the story we had.” …
As earlier noted, we are restricted in validating the ruling of the trial court to the reasons she gave. The trial court did not base its exclusion of the testimony upon a determination that the proffered evidence would merely be cumulative. The majority here, however, utilizes a conclusion to that effect to affirm the ruling. In doing so it errs.”
The dissenting judge also believed the majority confused the differences between cumulative and corroborative evidence in its justifications.
“It is my view that the majority erroneously or inadvertently uses the term “cumulative” interchangeably with the term “corroborative”. Cumulative evidence is that which goes to prove what has already been established by other evidence. … Corroborative evidence tends to corroborate or to confirm while cumulative evidence merely augments or tends to prove what has already been proved. … Evidence which brings to life some new and independent truth of a different character, although it tends to prove the same proposition or ground of claim before insisted on, is not cumulative, within the true meaning of the rule….
The testimony sought to be admitted here was different in kind and character from other evidence adduced at trial. It went to an issue or issues and to facts or observations not covered by other evidence. It was not cumulative. It may have been in the nature of corroboration with respect to the crucial facts surrounding and immediately preceding the sexual acts but that very aspect of corroboration is what made the exclusion of the evidence prejudicial to the defense.”
The dissenting judge took the majority to task for calling the evidence merely impeaching, as if that was not crucially important to the defense, and also noted that Tyson’s proposed jury instructions regarding mistake of fact should have been provided to the jury:
“One aspect of the majority opinion considers the excluded evidence as merely impeaching in nature and holds that it was merely cumulative of evidence which impeached D.W. “on other points”. … I strongly disagree. Even if the offered evidence were to be construed solely as impeaching, impeachment upon one issue is not cumulative of impeachment upon other issues. …
The evidence of record, to which the excluded evidence is thought by the majority to be cumulative, demonstrates that the jury was entitled to believe that there was consensual sexual contact in the hotel room. There was testimony to that effect from Reverend Katherine Newlin, who attended D.W. at the hospital. … At a very minimum, such testimony gives rise to a strong and reasonable inference of consensual sexual contact in the hotel room. It is baffling indeed, therefore, that the majority proceeds to cavalierly discount the defendant’s reasonable belief contention.
The manner in which Tyson and D.W. acted toward each other shortly before the acts complained of has great relevance to whether or not Tyson, at the time, might have reasonably believed, from all the surrounding circumstances and events, that D.W. was consenting–even though as a factual matter she did not consent. …
The issue is not whether Tyson reasonably believed that D.W. would consent. It is whether he reasonably believed that she was consenting. In this sense, then, the exclusion of the testimony from Martin, Neal and Lawrence was particularly prejudicial and that prejudice was magnified by the failure to give instructions with respect to mistake of fact, reasonable belief or to instruct that the degree of culpability, i.e., knowing, was applicable to the essential element of compelling force.
In holding that the evidence excluded was “only minimally corroborative of Tyson’s testimony” with respect to D.W.’s receptiveness to Tyson’s physical advances, the majority usurps the jury function. It is totally inappropriate for this court to convert speculation as to the credit and weight which a jury would give certain evidence or the impact of such evidence upon their consideration of other evidence into a holding as a matter of law.
Without question there was error in excluding the testimony of Ms. Martin, Ms. Neal and Ms. Lawrence. Without question that error was not harmless beyond a reasonable doubt.”
This judge believed that “the excluded testimony of Ms. Martin, Ms. Neal and Ms. Lawrence would have added to the factual mix before the jury and may have reasonably tipped the deliberative balance in favor of acquittal.”
Tyson’s Second Appeal
In Tyson v. State, 626 N.E.2d 482 (Ind.App. 2 Dist., 1993), Mike Tyson alleged that his conviction should be reversed as a result of newly discovered evidence, which was that all along Washington had planned to sue Tyson in civil court, despite previous claims to the contrary.
However, the Indiana Court of Appeals held that Tyson’s counsel had failed to ask Washington if she expected to receive any monetary benefits from her experience; if she had retained a lawyer named Ed Gerstein to pursue a civil suit; if she had any written agreement with Gerstein; if she had contemplated bringing a civil suit; if she had the present intent to sue Tyson; if she had discussed selling her media rights with anyone; if she wanted to sell or had contemplated selling her media rights; or if she believed she could exploit her experiences with Tyson in any other way.
Nevertheless, Tyson argued that his attorney’s lack of diligence should be excused because Washington and her parents, in their depositions and at trial, testified perjuriously, falsely, or misleadingly in order to obscure his ability to discover the family’s financial motives. In particular, Tyson claimed he was unable to put the “critical fact” before the jury that Washington had consulted with attorney Ed Gerstein “with a view towards instituting a civil action against Tyson” because “[t]he Washingtons took the position, at their depositions and before the jury at trial, that Gerstein … was retained only for defensive purposes….”
Although Judge Sullivan concurred with the majority in this ruling, he noted his belief that indeed, “D.W. and her parents gave misleading testimony.”
“While I agree that Tyson’s counsel failed to use reasonable diligence to discover the full details of the retainer agreement between D.W. and Edward Gerstein, I am unable to agree with the majority that the testimony of D.W. and her parents was not misleading. Although perhaps many of the various answers given with respect to the relationship with Gerstein were literal responses to the questions as phrased, and although the witnesses certainly had no duty to volunteer information, in light of the facts known by the witnesses, the answers were misleading.
D.W.’s answers carried the clear implication that Gerstein was retained only to “help me through this”, i.e., the criminal trial, and that when the trial was over, her parents would pay him. Additionally, she belied the fact that she was the client when she testified that Gerstein was counsel for the family. More importantly, when asked whether there had been any discussions between Gerstein and the family concerning compensation, she unequivocally said: “No.” …
Mrs. Washington testified that Gerstein was counsel for the family but that there was no written agreement relating to the relationship. In light of the fact that Mrs. Washington was a signator to the retainer agreement between Desiree Washington and Gerstein, that answer was also misleading.
Mr. Washington, also a signator to the agreement between D.W. and Gerstein, stated that he had retained Gerstein’s services but categorically stated that the purpose was “to help ward off the media”… He also denied that any consideration whatsoever had been given to the possibility of a civil suit against Tyson. … Further, he denied that he had a contingency fee agreement with Gerstein and stated that his only agreement was to pay expenses. Again, in the context of the facts, the natural and logical implication of the testimony of all three witnesses was that there was no contingent fee agreement with Gerstein with regard to representation in civil proceedings.
In point of fact, the retainer agreement was entered into and signed on August 1, 1991. Although Donald C. Washington and Mary B. Washington were signators, as well as D.W., the agreement clearly states that D.W. is the only client–not the “family” and not Mr. and/or Mrs. Washington. It also clearly spells out that the purpose of the agreement is not to get D.W. or the family through the criminal trial or to “ward off the media,” but rather was to procure legal representation regarding possible civil liability on the part of Tyson and others as a result of the “incident” of July 19, 1991.
If the information given by these witnesses were the only information available to defense counsel, the deposition and trial answers would have been sufficiently misleading as to indicate that further inquiry or issuance of a subpoena ducestecum would be wasteful and unavailing.”
Nevertheless, this judge believed that based upon the knowledge already possessed, Tyson’s trial counsel simply did not ask the right questions. Hence, the lack of due diligence defeated Tyson’s “newly discovered evidence” argument, despite the fact that his counsel had been misled.
The Indiana Supreme Court declined to consider or hear Tyson’s appeal at all, deadlocked at 2-2 in its vote whether to consider the case for further review (the fifth judge recused himself). A majority vote was needed. Hence, the Court of Appeals’ decision stood.
Author Adam J. Pollack is the owner of winbykopublications.com, has written several books about early heavyweight champions, is a boxing referee and judge, and is a practicing attorney in Iowa City, Iowa.
Boxing’s First Female Judge and Four Former Champions in Hatfield, PA, Saturday!
By: Ken Hissner
This Saturday at the BucksMont Indoor Sports Center, 2278 North Penn Road, Hatfield, AP. 19440 should be well attended from 10:30am to 4:00pm. The first female boxing judge in the country Carol Polis will be selling her book, “The Lady is a Champ” and will be selling autographed photographs. Come out and meet Carol in person along with four professional boxers on Saturday, September 10, 2016.
I personally know Carol and purchased her excellent book. It’s worth every cent you invest it in. Carol is also a great guest speaker at libraries, nursing homes and any sporting event. I have heard he speak and she keeps your attention on every word. Carol should be there at 10:30am when the show starts.
Joining Carol will be four former world boxing champions of which two were teammates on the 1984 USA Olympic Boxing team where both won Gold Medals.