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4.2.12
WC: 191694

In light of Judge Gifford’s attitudes and professional background in regard to rape, it might be wondered how the prosecution got so lucky as to have her as the judge in the Tyson case. Luck, however, played no part in the selection. Using Indianapolis law and practice, the prosecutor was able to pick the judge who will try a criminal case. I am aware of no other place in the free world where a prosecutor has this ability, other than in Indiana. And the prosecutor picked wisely, if not fairly.

Several distinguished commentators—including Indiana’s leading authority on criminal procedure—concluded that the trial judge committed a serious legal error by excluding the three crucial witnesses. Articles in The American Lawyer and the New York Law Journal—reached the same conclusion, as did most of the lawyers and law professors with whom I conferred.

Despite the strong issues that she knew could be presented on appeal, Judge Gifford denied Tyson bail pending appeal, apparently accepting the prosecutor’s silly argument that this celebrity defendant would somehow sneak away and flee to a country with no extradition treaty with the United States. She also ruled that all the appellate issues would be “frivolous.” Finally, as if to prove she was an advocate rather than a judge, she actively lobbied in the media against any reversal of the conviction, convening a press conference and, according to news accounts, “express[ing] some worries about having her ruling overturned, especially in an internationally publicized case in which prosecution costs alone reached $150,000.” She commented on “the enormousness of the reversal of the a case that would have to be tried again like this.” We were advised by several local lawyers that she also personally lobbied the appellate judges against reversing the conviction. These actions were completely unethical, and in direct violation of the Code of Judicial Conduct, but apparently acceptable in Indiana.

The case was a close one at trial. Judge Gifford’s one-sided rulings shifted the balance against Tyson in what was otherwise a difficult prosecution. Even without all this exculpatory evidence, the initial jury vote was six to six. Eventually, the six who voted for conviction were able to persuade the six who voted for acquittal that there was no reason to disbelieve Desiree Washington’s account. But that account, especially when reviewed against the background of the information that is now known, is extremely unconvincing.

What then was Desiree Washington’s account of what happened that night?

Although Desiree Washington insisted she had no interest in having sex with Tyson, she acknowledged that she led him on and that she acted like a groupie would behave. The director of the Miss Black America Pageant, in which Desiree was a contestant, even criticized her for behaving like a “groupie.” She sat in his lap and hugged him during the pageant rehearsal when they first met. She showed him a picture of herself in a bathing suit, gave him her hotel room number and agreed to go out with him. She took his call at 1:45 in the morning and agreed to come down to meet him in his limo. She then went into her bathroom and put on a panty liner to keep her expensive borrowed dress from becoming stained by the beginning of her menstrual flow during the partying and sightseeing she said she expected to do over the next several hours. She willingly accompanied Tyson to his hotel room at 2:30 in the morning, sat with him on his bed, and she then went into his bathroom and removed her panty liner without replacing it. How did she expect to prevent her borrowed $300 outfit from becoming stained over the next several

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