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Posted on 07/02/2017

Boxing Thoughts on an Eventful Summer
By Adam J. Pollack

Manny Pacquiao vs. Jeff Horn. It is sad that all of the outrage about the alleged robbery actually robs Horn of the accolades that he rightfully deserves. That was a close fight, not a robbery, and Horn fought the perfect fight. Overall, he dictated and was more in control of matters than Pacquiao. Horn had awkward head movement, in-and-out side-to-side footwork, altering the tempos and rhythms of the fight, attacking ferociously, mauling and outworking Pac on the inside, pulling his head down (which Referee Mark Nelson allowed), occasionally butting, then moving and ducking again, showing his versatility. Horn fought the better fight, and had the superior generalship and energy in the contest. Except for the 9th round, Pac never could time or get a read on him, and his range was off. His energy levels overall were fairly low, and lower than they needed to be when he most needed energy late in the fight, when most thought Horn would fade from all of his work. But Horn was in great, superior shape, and Pac was not. All three judges had it for Horn unanimously.

Pacquiao did almost no fighting on the inside, but that is where he needed to work, because he was the shorter fighter with shorter arms, and often was falling short or missing from the outside owing to Horn’s footwork, head movement, and superior height and reach. But Pac was getting manhandled by Horn’s strength, particularly since Pac mostly tried to hold on the inside, rarely worked while there, rarely countered when close, and used a passive defense, which only encouraged Horn.

Let’s face it. Pac has gone up a lot of weight divisions over his lifetime. He looked like a blown-up lightweight fighting a thickly built middleweight in there. The size disparity was quite obvious. Horn’s height, reach, size and strength were big factors in the fight.

Andre Ward vs. Sergey Kovalev. First of all, due credit must be given to Ward for being one of the most courageous champions in the sport. He always has been willing to fight the best out there, and he has proven it consistently, against guys still at the top of their games, which is more than one can say for a lot of so-called champions in this sport. That alone places him at the top or near the top of the pound-for-pound list. His resume features the who’s who of his division’s elites, from Kessler, Abraham, Froch, Dawson, and now Kovalev, not once, but twice. Even some of the lesser-known guys he has fought, like Edwin Rodriguez and Sullivan Barrera, have been real fighters who would be tough outs for anyone but Ward.

As for the Kovalev rematch, before the fight I said that if Kovalev thinks he can just go in there and overpower Ward, and not engage in some real honest reflection about some of his mistakes in the first fight, he was doomed to lose again. Andre Ward is a very smart fighter. Regardless of his poor start in the first fight, he was the one who made the adjustments to make that fight close, whereas after Ward adjusted, Kovalev did not. It likely would be the case that Ward, having learned a great deal from the first fight, would come into the second with a better game plan. I said that if Kovalev did not work on his inside game, footwork, relaxation, punch volume and gears, he was going to lose by an even wider margin this time, though I believed it would be via decision.

In the rematch, after the first few rounds, Kovalev looked lethargic, listless, and confused. He had even less energy than in the first fight. He made no adjustments, mentally was not all there, and seemed more fatigued than the relatively slow pace would have made one think he would be. Now some of his fatigue might have been owing to the occasional low blow, which oddly enough, Referee Tony Weeks either failed to see or failed to warn Ward about. Getting hit low tends to wear you down. But we all know that if the referee does not help you, you need to help yourself. But Kovalev did very little to help himself in any way.

Conversely, Ward’s defense was near perfect, he landed the cleaner crisper blows, particularly to the body, but also several solid jabs and lead rights to the chin. Kovalev clearly was hurt by the body blows, and he was affected by some solid blows to the chin. Like the first fight, after a competitive first 3 rounds, as of the 4th round, one could tell that Ward had adjusted and slightly taken over, and felt more comfortable, whereas Kovalev seemed more confused. By the middle of the fight, it certainly appeared that Ward was en route to another victory.

All that said, it doesn’t change the fact that Ward landed several low blows in the 7th and 8th rounds, and the final blow which doubled over Kovalev and led referee Tony Weeks to stop the contest, was low. True, Kovalev had been hurt by a right to the chin, but he was finished with a low blow. It should not have been stopped at that point. Kovalev should have been given a recovery period and the action allowed to resume, per the unified rules. The referee deprived Kovalev the opportunity to recover from the foul blow, Ward the opportunity to win cleanly and without controversy, and the fans the benefit of their bargain.

Kovalev subsequently has issued a statement that making weight has affected his endurance, and it might be time to move up to cruiserweight. We shall see.

Perhaps the more controversial fight was on the undercard: Guillermo Rigondeaux vs. Moises Flores. Rigondeaux should have been disqualified. He clearly and flagrantly held and hit, which set up the knockout blow, which was thrown and landed after the bell rang. How in the world anyone could watch that and say Rigondeaux deserves to win by knockout is beyond me. It is a reflection of the utter lack of integrity in this sport. Sure they changed it days later to a no contest, but one has to wonder how they got it so wrong on fight night. The result that night was absolutely wrong. If you don’t want to be disqualified, don’t commit flagrant harm fouls. The reluctance to disqualify a name fighter for egregious breaches of the rules is in part why boxing does not have the same level of respect as a sport.

The July 15 fight card at the Forum in Los Angeles might not have the biggest names in boxing, but there are some really good match-ups that should prove entertaining.

Miguel Berchelt vs. Takashi Miura. Both guys come to fight. Junior lightweight Miura is a bit more of the unpolished tough brawler, and Berchelt a bit more of the boxer, but Berchelt also has the power to hurt as well, having scored 28 knockouts in his 31 victories. Berchelt hasn’t lost a fight in over three years, his only defeat, and is coming off a KO11 victory over then undefeated Francisco Vargas. Southpaw Miura, 31-3-2, has 24 knockout victories to his credit, and is coming off a KO12 over 56-11 Miguel Roman. He has a common opponent with Berchelt, having been stopped in 9 rounds by Francisco Vargas in a fight in which both fighters were down. Naturally Berchelt is the clear favorite, but Miura is no easy out.

Joe Smith, Jr., 23-1, 19 KOs, vs. Sullivan Barrera, 19-1, 14 KOs. This might well be the best and most intriguing match-up on the card. This will be a true test for Smith. There still are a lot of question-marks surrounding him. Right or wrong, folks can find ways to explain away his recent big victories – Fonfara got caught cold, Hopkins was 50 years old, had been beaten up by Kovalev, and hadn’t fought in two years. There is no doubt that Smith is a very heavy-handed puncher who probably can hurt anyone he hits. But does he have the power, skill, and condition needed to beat Barrera, a guy who went a competitive 12 rounds with Andre Ward in his only loss, and who has knockout victories over sturdy guys like Karo Murat and Vyacheslav Shabransky? That question makes this fight very intriguing. There definitely is a real aura of danger for Smith in this one.

Terence Crawford, 31-0, 22 KOs, might well be the actual best pound-for-pound fighter in the world right now, and he’s fighting to become the first undisputed and undefeated champion in his weight division in quite a long time. On August 19, he will be taking on undefeated southpaw Julius Indongo, 22-0, 11 KOs, who is awkward, tall, long, and strong, and should not be underestimated. This should be a worthwhile junior welterweight matchup. Watching Crawford is like watching poetry in motion. But Indongo is the type of guy who will do whatever it takes to muck it all up and make it ugly, if he can.

Floyd Mayweather, Jr., 49-0, 26 KOs, vs. Connor McGregor, pro boxing debut, on August 26. You know, it makes me laugh and roll my eyes a little just to write that a guy with 49 pro boxing fights is fighting a guy making his pro boxing debut. It reminds me of when Floyd Patterson defended his world heavyweight championship against then pro debuting Pete Rademacher. But you know, as ridiculous as that fight was in its inception, at least Rademacher had actual boxing experience, and had won an Olympic gold medal, in boxing.

To the best of my knowledge, Connor McGregor is an MMA fighter. Sure, stand-up boxing is an element of MMA, but it isn’t what the sport is. Thinking this is a real fight is like taking the best ping pong player in the world and matching him in a tennis match with Roger Federer, or vice versa. Or taking the best bicyclist and putting him on a track to run against the world’s best 10,000 meter runner. At first blush, some might say ‘Maybe, they are similar,’ but anyone who understands the real differences between the sports understands it is more like apples and oranges than one might think. McGregor has no more chance to defeat Floyd in boxing than Floyd has to defeat McGregor in MMA.

Sure, McGregor will last some rounds, owing to the fact that Floyd is extremely careful, cautious, defensive-minded, and minimalist offensively. But don’t let that fool you or give you the wrong impression about McGregor’s performance. Floyd’s caution is all the more reason why McGregor has almost zero chance – Floyd won’t give him the opportunity to land even a lucky punch. He’s going to methodically pick him apart and bust him up.

The fight is non-competitive in its inception. If folks want to buy that, and there is a market for that, then so be it. If you purchase and pay for it, all you are doing is encouraging more ridiculous fights like this to occur. Floyd is a businessman who wants to make the most money for the least risk, so if the fight earns him a lot of money, from a business perspective, one cannot fault him. It certainly is the least risk possible. It will be the easiest money he has earned in a long time, perhaps ever. But from a sporting perspective, he deserves excoriation.

Mayweather is banking on the fact that there is a market for the freak show, the side show, the curiosity. This isn’t boxing as much as it is show business. This is like a circus, with promotion which will be akin to wrestlemania, and like the ringleader and circus master P.T. Barnum once said, “There is a sucker born every minute.” Back in 1910, when Jack Johnson defeated James J. Jeffries, who had been the betting favorite despite not having fought in six years, one observer wrote, “We fool ourselves every day more than other people fool us.” This fight is a fight to fool fools who will help fool themselves.

Perhaps some MMA folks will watch to see how well an MMA fighter can do with an elite boxer, and some boxing folks will watch to see the boxer pummel the MMA fighter. Some might liken it to Rocky. Some folks will be hoping that McGregor, like Rocky, shocks the world with his performance. But we all know what happens in real life.

Japan’s world superflyweight champion Naoya Inoue, 13-0, 11 KOs, is one of the best, most talented pound-for-pound fighters in the world, but amongst the least known top fighters. He will be fighting Antonio Nieves, 17-2-2 on September 9 in California. Check him out. You are in for a real treat.

Posted on 05/23/2017

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?
A.: Yeah.
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?
A.: Yes.
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?
A.: Yes.
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.