Smith May Take Stand Today in Rape Case : Trial: Defense lawyer says his client will testify if questions about other sexual assault accusations are barred. The judge is expected to grant motion.

By PAUL RICHTER

Dec. 10, 1991 12 AM PT

TIMES STAFF WRITER

WEST PALM BEACH, Fla. — William Kennedy Smith will take the stand today to rebut the rape charges against him if, as expected, a judge rules to bar the prosecution from using three other sexual assault accusations to attack his credibility.

Roy E. Black, lawyer for the nephew of Sen. Edward M. Kennedy (D-Mass.), said that his client will testify if Florida Circuit Judge Mary Lupo clarifies that prosecutors cannot “pry open the door” to using the testimony of three other women. Lupo said she is ready to grant Black’s motion but she first gave the prosecution an opportunity to research the applicable law overnight.

Smith’s appearance would culminate the testimony in the highly publicized rape case and, in the view of several legal experts, would be likely to determine the jury’s verdict.

“He has to be darn good on the stand, because the alleged victim was darn good,” said Paul H. Rothstein, a specialist in criminal law at Georgetown University Law Center. “The case will rise or fall on what he says.”

In the eighth day of the trial, the defendant’s mother, Jean Kennedy Smith, took the stand, and the prosecution and defense jousted over the testimony of a human sexuality expert, a botanist, a meteorologist and two friends of the Kennedy family who were at the Kennedy compound the weekend of the alleged rape.

The defendant’s mother said that she was in her room in the mansion on the night of the alleged crime and heard no screams. She also told how the family had come together for last Easter’s holiday.

“It was my first vacation without my husband,” she said. “I thought it would be nice if we were all together.” Stephen Smith died in August, 1990.

She told how she, Sen. Kennedy and friends William and Mary Lou Barry had talked on the evening of March 29 about her husband and her late brother, Robert F. Kennedy.

But in contrast to Sen. Kennedy in his testimony last Friday, she showed no emotion during her 25 minutes as a witness. Although she spoke softly, her voice became firmer and louder as she responded to prosecutor Moira K. Lasch’s questions about why she did not report the theft of an urn, a picture frame and a legal pad. The items were taken by the alleged victim and one her friends on the night the rape is said to have occurred.

The prosecutor has questioned why family members did not report the disappearance of the items, apparently intending to show that the Kennedys were trying to cover up the alleged attack by Smith.

As he has done repeatedly, Black elicited information about the Kennedy family in an apparent effort to touch the jurors’ with memories of the family’s glories and tragedies. Jean Kennedy Smith told of her father, Joseph, and her mother, Rose, now 101 years old, and listed her brothers and sisters. She referred to the senator as “Teddy.”

Meanwhile, the testimony of three other women who have said that the defendant also attacked them remains an explosive issue. Even if the allegations are never proven, their testimony could persuade jurors that Smith has a tendency to assault women.

In his motion, Black said that the state is not entitled to bring up the accusations because the defense has presented no testimony to paint Smith as a “nonviolent” person. Under legal rules, any such claim about the defendant would entitle the state to present evidence to the contrary.

Black argued that Smith’s taking the stand “does not in itself open an inquiry on cross-examination of any alleged prior misconduct. . . . Only if the accused intentionally makes his nonviolent character an issue in the case--which Mr. Smith has not done--may the state introduce evidence of previous alleged violence to rebut this testimony.”

But lawyers said that the prosecution might still be able to introduce the women’s testimony if Smith, even inadvertently, says something to hint that he has conducted himself well with women in the past.

Bruce Rogow, a law professor at Nova University in Ft. Lauderdale, Fla., said that Black therefore may decide to question Smith only about the facts of that night and make no attempt to establish his good character or discuss his past.

“Anything about that would quickly become dangerous stuff,” said Rogow, who last year successfully defended the rap group 2 Live Crew against an obscenity charge.

Another defense witness, Gregory Cummings, said that he met the accuser in the case the night of the alleged rape and found her “a little bit arrogant--a little bit cocky.” Cummings, who owns a company that makes shooting gear, said that the woman “took offense” when he told her he lived in a wealthier section of Jupiter, Fla., than she did.

He also testified that he saw her take a sip from a $60 bottle of champagne.

The testimony was an apparent attempt to impugn her character.