Murky facts lead to clear decision

December 5, 2013, 5:41 PM

— -- Three key factors led a Florida state attorney to conclude that he could not file a sexual assault charge against Florida State quarterback Jameis Winston.

Major lapses in the accuser's memory, her level of intoxication at the time of the incident and the presence of DNA from two different men in the woman's rape kit were the main reasons the state decided not to charge the Heisman Trophy favorite, State Attorney Willie Meggs said during a news conference Thursday.

To prove such a case, a prosecutor must be able to show a jury a convincing narrative of what happened. If the accuser cannot remember parts of the story, the prosecutor must have other witnesses who can provide the material. It was clear in Meggs' explanation that the other witnesses whom his staff interviewed did not plug the gaps in the accuser's story.

Several times during his news conference, Meggs referred to her memory gaps about what happened on Dec. 7, 2012. "She was not sure about a lot of things," Meggs said.

Although Meggs refused to speculate why, he did point to an analysis of a blood-alcohol test taken several hours after the alleged attack that showed that her blood-alcohol content at the time of the incident could have been 0.10 percent, even though when it was taken the test registered a 0.04 reading. The 0.10 reading would have been higher than the 0.08 legal limit for driving.

The clear implication of Meggs' use of the extrapolated blood alcohol levels was to show that the accuser may have been in the brownout or blackout stage of intoxication, a probable cause of the memory gaps.

Intoxication is always a problem for prosecutors in sexual assault cases. In the investigation of Pittsburgh Steelers quarterback Ben Roethlisberger for a sexual assault in Milledgeville, Ga., in March 2010, the accuser was not able to remember what happened and told the police she was not sure whether she had been assaulted, leading to a decision not to file any charge. Several sorority sisters of the accuser described her as highly intoxicated even several hours after the alleged incident.

The intoxication of an accuser not only causes gaps in memory, it also increases an accuser's anxiety about testifying in court. In many cases, the victim of a sexual assault is reluctant to testify against her attacker, and the intoxication can add to the sense of angst and embarrassment that the accuser faces in the investigation. Roethlisberger's accuser told the prosecutor that although she thought she had been raped, she did not want to pursue the allegation into a charge and a trial.

Winston's accuser would have faced significant difficulty in any trial. She would have faced brutal cross-examination on her memory gaps, her drinking, and on the presence of her boyfriend's DNA on the night of the incident. Rape shield laws in all 50 states protect sexual assault victims from inquiry into their sexual histories, but the presence of two sets of DNA on the same night would have allowed cross examination on the details of what she did with her boyfriend.

How reluctant was Winston's accuser to testify about the boyfriend? She refused to give Meggs and his investigators his name, and when the investigators located him, he refused to cooperate. He gave them a DNA sample because he was required to do so, but he refused to respond to their questions about what happened on the night in question.

Meggs said that he didn't think he could put the accuser on the witness stand and "count on her to prove elements of a crime."

After 29 years as state attorney, Meggs knows what is necessary to prove a sexual assault case. In the course of a 13-day intensive investigation, he concluded that the accuser's story could not be proved, and he made the only decision he could: not to issue charges.