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Rape Shield Law Tripped Attorney

By Jan Cienski
Associated Press Writer
Thursday, September 25, 1997; 8:28 p.m. EDT

RICHMOND (AP) Marv Albert's attorney said that the sportscaster didn't want to plead guilty to assault charges Thursday but that his case was gutted by laws that allow surprise witnesses and bar dirt from the accuser's past.

"Unfortunately, under the rules in Virginia, much of our evidence was not allowed," Roy Black said. "I think if all our evidence had been allowed, we would not be in this position right now."

Legal experts said there is nothing unusual about Virginia's legal system.

So-called rape shield laws, which limit evidence about the previous behavior of alleged victims of sexual crimes, are almost universal. They also said Virginia is not alone in allowing attorneys call surprise witnesses.

"That's very standard evidence law," said Earl Dudley, who teaches law at the University of Virginia. "It just doesn't sound to me like any of the judge's rulings are unusual at all."

Circuit Court Judge Benjamin N.A. Kendrick blocked almost all of the damaging evidence Black had against the woman who accused Albert of viciously biting her and forcing her to perform oral sex in a hotel room Feb. 12.

Black said Kendrick's rulings excluded "approximately 85 to 90 percent" of his case, including claims that the woman had a pattern of threatening past boyfriends, was a chronic liar and was mentally unstable. Black also said he had at least one witness who would testify that the woman liked to be bitten.

All states except Maine have rape shield laws, and Maine has a similar principle under common law. The purpose is to make it possible for victims to come forward without fear of their whole pasts being put on trial.

But Harvard Law School professor Alan Dershowitz said evidence against the woman should have been allowed in the Albert case.

"This was the most outrageous coercion of a guilty plea I have seen in many years," Dershowitz said. "The rape shield was designed to make sure that the general background, such as whether someone was a virgin, could not come in. But here you have this unusual predilection, specifically whether she had consented to be bitten [during sex] by other men. Not to allow that in is outrageous."

Equally as damaging for the defense was a surprise witness who took the stand Wednesday to say Albert bit her and tried to force her to perform oral sex in a hotel room three years ago. The judge allowed it because the account was a near "carbon copy" of the accuser's story.

While many states require the defense and prosecution to share information about witnesses, others, including Virginia, allow the two sides to keep their witness lists secret.

Henry Hudson, a former U.S. attorney and Arlington County prosecutor, said that Virginia's discovery laws originate from English common law and that the state has been slow to liberalize them.

"There are others, but in Virginia, with very, very limited discovery, it is often trial by ambush," he said.

Virginia's rules may have surprised Black, who practices in Florida, where disclosure is required, said David P. Baugh, a Richmond lawyer who practices in both states.

"In Virginia, you have to be good on your feet," Baugh said. "You have to react to things you might not have anticipated."

© Copyright 1997 The Associated Press

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