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Former Federal Judge Limited in Testimony as Expert Witness

Vanderbilt Football Player Convicted of Rape Despite Defense Expert Testimony

Last week jurors in the high profile rape trial of a former Vanderbilt football player returned a guilty verdict against a defendant who claimed he was too intoxicated to engage in the type of malicious criminal behavior required for aggravated rape charges.  Despite testimony from a defense expert witness which bolstered his claim, Cory Batey was convicted of aggravated rape and 6 lessor charges for his role in a 2013 incident involving a 21-year-old woman.

Former Vanderbilt Football Players Charged with Rape

Cory Batey was the first of two former Vanderbilt football players to face a retrial for charges stemming from the 2013 incident when he allegedly raped an unconscious 21-year-old woman in a university dorm room after a night of drinking.  Batey and former teammate Brandon Vandenburg were convicted in January of 2015 of aggravated rape, attempted aggravated rape, and aggravated sexual battery, but were granted a new trial only two months later when evidence emerged that one of the jurors was a victim of sexual assault.  Judge Monte Watkins granted the mistrial due to a potential conflict of interest, forcing Tennessee prosecutors to prepare for a second trial which began in March of 2016.

Trials for Vandenburg and two other former Vanderbilt players who have yet to face any trial, Brandon Banks and Jaborian McKenzie, will begin later this month now that prosecutors have finished retrying Batey for his alleged role in the incident.  During the prosecution’s case, jurors were shown pictures of cell phones belonging to Batey, Vandenburg, and Banks which depict graphic images of the players apparently squatting over the unconscious victim and touching her genital area while making lude gestures towards the camera.

Since the early part of the investigation, Batey claimed that he was intoxicated throughout the incident and could not remember assaulting the victim.  In order to bolster his claim that Batey did not act with the intent necessary to commit aggravated rape, defense attorneys called an expert witness to tell jurors that the defendant’s intoxication significantly affected his mental state at the time.

Defense Expert Explains Intoxication Level in Vanderbilt Rape Case

Jonathan Lipman, an alcohol expert, took the stand during Batey’s defense in order to explain to jurors the effect a night of drinking had on the defendant.  According to Lipamn, the defendant was so drunk on the night of the rape that his blood alcohol content was likely between 2 and 5 times the legal driving limit in Tennessee.  Lipman punctuated his expert testimony by telling the jury that Batey would have been able to function, but would likely have done “silly things, jackass things” that he was not going to remember the next day.

Prosecutors in the case took Lipman to task for the methods he used to arrive at his expert opinion, and aggressively questioned him during cross examination.  Deputy District Attorney General Tom Thurman started his cross examination by forcing Lipman to admit that his entire expert testimony was based on data he had collected from Batey’s own recollection of the evening.  Lipman conceded that there was no hard evidence of the amount of alcohol the defendant consumed, and Thurman pointed out that Batey’s own testimony about the number of drinks he had changed during the investigation, and included an admission from the defendant that he had stopped drinking at least an hour before the sexual assault.

Lipman responded to the questioning that even if Batey was not as drunk as he initially estimated, the defendant still would have been blackout drunk and impressionable to suggestion by others.  Lipman conceded that his expert witness testimony was only as good as the data he received, but maintained his statement that the defendant was severely intoxicated.

Jury Convicts Cory Batey in Vanderbilt Rape Trial

Despite expert testimony about the effect of alcohol on his decision making, jurors again convicted former Vanderbilt football player Cory Batey for aggravated rape in his retrial.  Batey received a small break because the secondary charges he was convicted of are less serious than the ones he was convicted of following the 2015 trial, but he is facing serious prison time which will be determined during his sentencing trial on May 20th.

The remaining defendants will face trial later this month, and their defense teams have not announced plans to call Lipman or any other expert witness to testify about their mental state or intoxication level at the time of the rape.

Judge to Consider Psychology Expert Witnesses in Vanderbilt Rape Trial

As the rape trial of two former Vanderbilt University football players will begin in a Tennessee courtroom next week, the fate of testimony from two psychology expert witnesses on behalf of the defendants has yet to be decided by the presiding judge.  Judge Monte Watkins has agreed to hear the defense expert testimony away from the jury, and will rule on how much of it, if any, the experts are allowed to say in open court.

Vanderbilt Ex-Football Players Accused of Rape

Former Vanderbilt football players Brandon Vandenburg and Cory Batey are facing charges for the rape of Vandenburg’s unconscious 21-year-old girlfriend in June of 2013.  Vandenburg, Batey, and two other former members of the team who have yet to go to trial are accused of dragging the young woman to a dorm room inside Vanderbilt’s Gillette Hall and raping her while she was drunk and unresponsive.  All four athletes were kicked off the football team when the allegations became public, and they face significant jail time on five counts of aggravated rape and two counts of aggravated sexual battery.

Vanderbilt Rape Defendants Petition for Expert Witness Testimony

During the pre-trial process, defense attorneys for Brandon Vandenburg submitted for approval planned testimony by a psychology expert witness who argued the young man was intoxicated and did not have control over his behavior.  Dr. Stefanie Stolinsky, a forensic psychologist, produced an expert witness report that argued Vandenburg was too drunk to know what was happening on the night his girlfriend was raped, and therefore could not form the necessary intent to commit the crime.

Although no blood alcohol test was performed to verify the Defendant’s level of intoxication, Dr. Stolinsky pointed to other evidence that suggested Vandenburg could not control his actions, including: witness statements corroborating his account that he was severely intoxicated, video evidence that showed he needed help getting his girlfriend out of his car and into the dorm room, images of him stumbling and swaying as he walked, and evidence that he vomited in the bathroom due to the alcohol he consumed. If successful, Dr. Stolinsky’s testimony would serve as a partial defense to the charges Vandenburg faces.

Defense attorneys for Cory Batey also requested the court allow a psychology expert witness who will speak to the young man’s state of mind at the time of the alleged sexual assault.  Dr. James Walker, a neuropsychologist who works for Vanderbilt, has been retained by Batey to determine whether or not the Defendant was mentally incapacitated at the time of the incident, and to further testify about his ability to understand the trial process at all.  As the details of Dr. Walker’s testimony are not known, prosecutors would likely ask for a delay in the trial to prepare a counter-expert if Judge Watkins allows Walker to take the stand.

Vanderbilt Defense Expert Witnesses Target Intent to Commit Rape

Both expert witnesses will argue that the two defendants lacked the requisite intent to commit aggravated rape or aggravated sexual assault.  In Vandenburg’s case, it is important to note that intoxication, particularly voluntary intoxication, is not a perfect defense because even if jurors agree with Dr. Stolinsky’s expert analysis, Brandon could still be found guilty of rape.  The defense is primarily designed to lessen the severity of the charges against him, which in turn would lessen his punishment.  In Mr. Batey’s case, if Dr. Walker determines that he was incapable of processing his actions on the night of the alleged rape or that he is unfit to stand trial, prosecutors would need to call a psychology expert witness to provide a counter-analysis that demonstrates the contrary or be forced to reevaluate the charges against him.

Prosecutors Move to Suppress Psychology Expert Witness

Prosecutors made a pre-trial motion to disallow the testimony of Dr. Stolinsky submitted by Vandenburg’s defense team, saying that the psychologist did not conduct a proper analysis to reach the conclusion that the Defendant was too intoxicated to control himself.  Without a breath test, or some other scientific measure of blood alcohol content, prosecutors argued that Stolinsky’s expert witness does not have the necessary foundation in science or reliable methodology to speak to Vandenburg’s level of intoxication and, as such, should not be allowed on the stand.

Judge Monte Watkins declined to suppress the expert witness testimony of either psychologist, but did not extend the invitation for them to speak to jurors during trial.  Instead, the Judge will hear testimony from each expert in a private session with only the parties present, and determine if either has met the criteria required for reliable and relevant expert testimony.  Expert witness testimony must be supported by scientific research and methodology, and must apply to the issues central to the case before jurors can use it to make a guilt determination.  Judge Watkins will hear the proposed testimony from each defendant’s expert witness next week before he makes a final decision about whether or not either will be able to take the stand during the high profile rape trial.