Factors affecting Roethlisberger inquiry
It's so narrow and so cramped you can barely turn around. Its floor is filthy. It has one basin and one toilet. And it's the place where a 20-year-old college student says Ben Roethlisberger attacked her.
The squalid bathroom in a college town drinking establishment is now a crime scene and a major focus of an investigation that has already put Roethlisberger in a bad situation, a situation that could become catastrophic if the police and the prosecutor in Milledgeville, Ga., decide to charge him with sexual assault.
In his attempt to respond to the woman's assertions, Roethlisberger has hired Ed Garland, one of America's greatest criminal defense lawyers.
Will it be enough?
Can Garland and his team of expert investigators put together enough evidence to show that the accuser was lying and confabulating when she told them that Roethlisberger assaulted her?
Here is a list of the factors the authorities and Garland are analyzing as the investigation continues through the next few days to a decision whether or not to charge, which is likely to come next week:
Accuser's veracity and sobriety
The accuser has given the police a detailed version of what happened to her. Milledgeville police, assisted by state agents, are checking on each of her details. They're looking for any shred of evidence that would confirm or contradict what she has told them. If they are able to find any forensic evidence in the bathroom, it will be a critical factor.
They are also determining whether the accuser was drinking, how much she drank and how long she drank. They will gather cash register and service records and interview friends who accompanied her. Prosecutors are loathe to file sexual assault charges when the accuser is in the brownout or blackout stage of intoxication.
Evidence of injury
The accuser was in a local hospital emergency room shortly after she says she was attacked. As soon as she told her story of what happened, the nurses and doctors on duty went into the procedures that are required after an allegation of sexual assault. Known as a "rape kit," these procedures are designed to gather and to preserve any indication of injury that could help determine the truth of the accuser's allegations.
If there is evidence of an injury that could result only from a forcible, violent sexual assault, Roethlisberger has a serious problem. It was incontrovertible injury evidence (a vaginal abrasion) that was a major factor in a jury's decision 18 years ago that sent Mike Tyson to jail for three years.
There were 12 security cameras operating in the 7,000-square-foot pub. Although the police are refusing to respond to any questions about the tape, it appears that video is available. It is not known whether the cameras showed the bathroom. Nor is it yet known whether the cameras show the accuser and Roethlisberger entering and exiting the bathroom. It is easy to overestimate the value and the importance of security camera evidence, but it may be a factor as police and prosecutors decide whether to charge Roethlisberger.
Police and prosecutors rely on witnesses who are able to describe the accuser's condition in the moments after the attack. A description of an accuser in hysterics or in shocked disbelief can be important to a prosecutor. Both the police and attorney Garland are interviewing any "outcry" witness who may have seen or even talked with the accuser after the alleged incident.
An outcry witness was powerful evidence against Tyson. When the victim, Desiree Washington, fled Tyson's hotel room in Indianapolis, she returned to her hotel in Tyson's limo. The driver, Virginia Foster, told the jury that she saw a sobbing woman in near hysterics and heard her crying, "I can't believe he did that."
In the Kobe Bryant investigation in Eagle, Colo., there were two outcry witnesses, one who said the victim was disheveled and crying and another who said the victim as perfectly normal. Prosecutors dropped the case against Bryant.
Previous predatory conduct
In trials on charges of sexual assault, the law frequently allows prosecutors to show the jury that the accused has been accused of previous sexual misconduct. If a prosecutor can show another incident of predatory conduct, it can become the turning point of the trial.
In the trial of sexual assault charges against broadcaster Marv Albert in Arlington, Va., the brilliant defense attorney, Roy Black, was leading Albert to an obvious not guilty verdict until the prosecutors, in a major surprise, brought in a second woman who told the jury that Albert had attacked her in the same way. After listening to the second woman's story, Albert and Black told the judge they would be entering a plea of guilty.
If the prosecutor in Milledgeville decides to charge Roethlisberger, he will, of course, look hard at the civil assault suit filed against Roethlisberger last July in Nevada. Although lawyers and scholars are not in complete agreement on the issue, it appears that the law of Georgia would permit the use of previous predatory conduct as part of the prosecution's evidence.
The last NFL star accused of a sexual assault in a small bathroom was former Green Bay Packers TE Mark Chmura. The accuser claimed that Chmura grabbed her and pulled her into the bathroom and raped her. Among the many holes in her bogus story was the bathroom itself.
Chmura's attorney, Gerry Boyle of Milwaukee, brought into the courtroom a model of the bathroom with its walls cut off four feet above the bathroom floor. It was not a scale model. It was the exact size and dimensions of the bathroom. When, during his cross examination, Boyle led the accuser to the actual-size model to demonstrate that her story was physically impossible, she stepped back from the model and exclaimed, "That's not it. It is too small." The jury deliberated less than an hour in reaching a not guilty verdict.
In the patois of lawyers and judges, Roethlisberger's lawyer, Ed Garland, is a "miracle worker." Garland offers a rare combination of a dramatic and compelling courtroom appearance and remarkable pre-trial investigative skills. In his defense of Ray Lewis against a double murder charge, Garland's superior preparation and courtroom dexterity humiliated Atlanta prosecutors and allowed Lewis to walk away from a difficult situation on a plea of guilty to obstruction of justice.
Any discussion of smart things that Roethlisberger has done lately is a short discussion, but it's a discussion that should focus on Garland and his ability to turn around what appears to be a hopeless situation. Roethlisberger has hired the right lawyer. His work for Roethlisberger will be top-of-the-line legal work; it will be expensive; and, it will be worth every dollar.
What happened in the dingy bathroom? The accuser says one thing. Roethlisberger says another. But it's not merely he-said-she-said. The evidence from the bathroom itself, the hospital and the witnesses will determine who is telling the truth.
ESPN reporter Kelly Naqi contributed to this report.
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.