Print and Go Back ESPN.com: Commentary [Print without images]

Monday, April 26, 2010
A tale of two sexual assault claims

By Lester Munson
ESPN.com

Polygraphs, plaintiffs and parallels … don't you just love this stuff? Courtside Seat does. Today, we start with …

Sex, lie detectors and football


Nearly three months before Ben Roethlisberger spent the evening doing shots with sorority girls in Milledgeville, Ga., another NFL player had an encounter with a college girl that resulted in an allegation of rape.

A look at the earlier scenario will tell us some things about the Roethlisberger situation that we might not otherwise have noticed.

According to court documents, the earlier case began a few minutes after 8 a.m. on a Sunday in January in an Indianapolis hotel, only hours before the AFC Championship Game, when Colts defensive tackle Eric Foster realized he had forgotten to pack a tooth brush and called the front desk.

Eric Foster
The Colts' Eric Foster faces a civil suit, but the evidence against him appears to be weak.

The hotel's procedure, as outlined in a lawsuit document, was to respond instantly to any request from the floor on which the Colts stay on the night before home games. Foster's request was passed on to a 22-year-old college student who works part time as a front desk receptionist at the University Place Hotel on the IUPUI campus not far from Lucas Oil Stadium. She quickly went to the Colts' floor with a tooth brush and some tooth paste, and knocked on Foster's door.

The alleged victim and Foster tell irreconcilably different stories about what happened next, and both offer evidence in support of their assertions. But scrutiny of court documents and analysis of interviews with the attorneys for both Foster and the receptionist indicate that Foster's evidence is more persuasive. The woman filed a report with campus police after the alleged incident, but Indianapolis prosecutors decided not to file any criminal charge against Foster.

The alleged victim claims in her civil suit that Foster lured her into his room, and then attacked her. Seeking money damages, she alleges that Foster is guilty of "exposing himself, touching, groping, and forcing [her] to engage in deviate sexual acts."

Her attorney, April Board of Valparaiso, Ind., insists that the alleged victim escaped into the corridor, took the elevator downstairs and reported the incident immediately to hotel security. Hotel officials now say that report was somehow accidentally deleted from their records. Eleven hours after the incident, she reported it to IUPUI campus police, according to university records first reported in the Chicago Sun-Times.

But, according to Board, the alleged victim did not submit herself to a rape kit examination in a medical facility, which makes independent proof of her assertions more difficult.

"We have her uniform that was torn and damaged in the attack," Board told ESPN.com, "and we have photos of the bruises that she suffered."

Foster's attorney, the Indianapolis-based Jim Voyles, one of the nation's leading criminal defense attorneys, insists that "absolutely nothing happened."

Off-duty Indianapolis police officers were stationed in the hotel lobby and on the Colts' floor, according to Voyles.

"The detective on the floor saw her go to the room, make the delivery, and return to the elevator," Voyles says. "She was fine, and her uniform was fine. He saw nothing out of the ordinary."

Within days after the alleged incident and the Colts' victory over the Jets, Voyles arranged for a private contractor to administer a detailed polygraph (lie detector) examination of Foster. "It cleared him, completely cleared him," Voyles told ESPN.com.

When IUPUI campus police put the alleged victim on the lie detector, sources say, she flunked the exam.

After reviewing the evidence -- including the torn uniform, the photos of the bruises, the statement from the off-duty detective and the polygraph results -- Marion County Prosecutor Carl Brizzi decided that no charges would be filed against Foster.

"We never had any claim of forced intercourse and no allegation of a rape," says Barbara Crawford, a deputy prosecutor who conducted the review. "We simply did not have enough to go forward."

Board, the alleged victim's attorney, is not happy with the prosecutors' decision.

"They were late in their inspection of the crime scene, and they did not follow the standard procedures for this kind of investigation, whether it's in the tiniest town in Indiana or in New York City," she says.

Board is also unhappy with the use of the lie detector. Indiana law, she says, does not require victims of sexual assault to submit to polygraph examinations. The lie detector test was administered to her client before Board joined the case.

Although lie detector evidence is not permitted as evidence in trials, it is frequently a major factor in investigations and in decisions on whether to file charges.

Voyles, who has successfully defended numerous sexual assault cases in Indiana, made the decision to submit Foster to the polygraph after a lengthy lawyer-client interview. It is a lawyer's technique that in the hands of an advocate as skilled as Voyles can be a formidable weapon.

Roethlisberger
Did Ben Roethlisberger take a lie detector test? We'll apparently never know.

So … what does all this tell us about the Roethlisberger case?

Ed Garland, the Atlanta attorney who represented Roethlisberger in the investigation of the rape allegation in Milledgeville, is, like Voyles, a highly skilled defense lawyer, one of the finest in the nation. Garland and Voyles are both members of the nation's leading organization of elite defense lawyers, the American Board of Criminal Lawyers.

We know that Garland, like Voyles, conducted a detailed interview of his client as soon as it was possible after the 20-year-old college student and her friends told police that Roethlisberger had raped her.

After that lawyer-client conference, did Garland, like Voyles did with Foster, put Roethlisberger on the lie detector? Or did Garland decide that a polygraph examination might not be a good idea? If Garland submitted Roethlisberger to a lie detector and Roethlisberger passed, wouldn't we have heard about it?

If the quarterback flunked a lie detector examination, we surely would never know. The outcome is protected by the legal doctrines of attorney-client privilege and "work product." The privilege applies to all communications between the client and the lawyer and bars the lawyer from disclosing them without the agreement of the client. The term "work product" is the designation for all material gathered during an investigation of the client and what happened between the client and the accuser.

Because charges weren't filed against Roethlisberger, we will never know the details and the conclusions of Garland's extensive investigation of what happened in Milledgeville. However, we do know from the reports of the Milledgeville Police Department and the Georgia Bureau of Investigation that Garland, despite a promise to allow investigators to interview Roethlisberger, never produced the quarterback for the interview. What does that tell us about what happened in the Capital City Club early on the morning of March 5?

Prosecutors in Indianapolis and Milledgeville made the same decision -- they decided not to file charges against NFL players accused of sexual assault. But in the context of this background, the differences between the situations are as dramatic as the difference between the six-game suspension imposed on Roethlisberger by NFL commissioner Roger Goodell and the fact no discipline has been imposed on Foster, either by Goodell or by the Colts.

The biggest loser


There are some winners and a big loser in the apparent settlement of a dispute between a would-be sports marketer and New Orleans Saints running back Reggie Bush.

The big winner is Lloyd Lake, who seems to have succeeded in his quest for a refund of $300,000 in cash and gifts that he says he lavished on Bush's family during Bush's student-athlete years at USC. Lake hoped to build a marketing company around Bush.

The big loser is the NCAA investigation, which might have just lost any chance of determining whether Lake, Bush and USC were guilty of violations of NCAA regulations. With the settlement and the cancellation of depositions of both Lake and Bush, NCAA investigators lost their best chance to determine what happened during Bush's time with the Trojans. Deposition testimony frequently becomes public; if these depositions had been taken and made public, the NCAA would have had access to what Bush admits to and what he denies.

ESPN.com contacted the lawyers for both sides, but no one will talk about the settlement or its terms and it is likely that the settlement includes a mutually binding confidentiality clause that will prevent public disclosure.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

MORE COMMENTARY >>