Local attorneys exit the Vanderbilt rape case as California counsel prepares an aggressive strategy 

Opposing Sides

Opposing Sides

The case of four former Vanderbilt football players charged with rape may well get uglier still, sources familiar with the investigation tell the Scene, as attorney infighting and hardball legal strategies set the stage for bitter maneuvering.

Attorneys representing former player Brandon Vandenburg convened recently in Judge Monte Watkins' chambers, joined by prosecutor Tom Thurman. With one of Vandenburg's California attorneys conferenced in by phone, the conversation centered on how the case will proceed now that Vandenburg's two local attorneys have decided to stop representing him.

Counsel-shuffling in cases that cross state lines is not altogether unusual. But the split portends what will likely be a no-holds-barred strategy to defend Vandenburg. The planned legal moves are so controversial, according to sources familiar with the discussions, that Vandenburg's two Nashville attorneys felt jeopardized by them.

Earlier this month, attorneys David King and Nathan Colburn filed a motion to stop representing Vandenburg, agreeing to stay on until replacements are found. In a response to the request, Vandenburg's California attorney Albert Perez cited King's health condition (he recently had open heart surgery, though he's back in the courtroom) and Colburn's inexperience (he's just four years out of law school) as reasons for their departure.

Yet in interviews with attorneys close to the defendants — who, like many people involved who were contacted by the Scene, requested anonymity since they cannot speak publicly about the open case — a markedly different narrative unfolds.

"The California attorneys are taking a scorched-earth approach because they don't care who they burn or who they terrorize," an attorney working on the case tells the Scene. "They have basically said: 'If you don't help us get this case settled, then we're going to turn this university upside down.' "

Prosecutors say former players Cory Batey, Brandon Banks and JaBorian "Tip" McKenzie were also in the room on the date of the alleged rape. None of the four players had played a game: Vandenburg was a junior college transfer, and the three others were redshirted their freshman year. All four have entered not-guilty pleas and have been released on bonds. The four are expected to be tried separately in 2014.

Perez recently filed a motion claiming that the district attorney's office is withholding a large amount of evidence from the defense attorneys, including text messages from coaches and witnesses, interview transcripts, lab reports and medical records. The filing also asked Judge Watkins to push back Vandenburg's trial date of Aug. 11, 2014.

A source involved with the proceedings who spoke to the Scene claims that the reason prosecutors have supposedly not filed all the evidence with the defense team is that some of it "might be detrimental to their case." For instance, a report on whether coach James Franklin was investigated in connection with this case has never been provided to the defense attorneys, according to a source close to the matter.

Susan Niland, spokeswoman for the DA's office, says prosecutors plan to respond in court on Tuesday to allegations that the state has been keeping evidence from the defense team.

As hinted at in Perez's filing, the California attorneys are expected to file subpoenas requesting the cell numbers of all the Vanderbilt football coaches. If the request is granted, subsequent subpoenas will seek text messages from the coaches' service providers. Sources familiar with the investigation tell the Scene there is at least one particular text message the defense attorneys are trying to get their hands on.

Retired California Judge Eugene Osko, who is representing Vandenburg pro bono and joining Perez, is "going for a home run," another attorney working on the case says. Their strategy includes maintaining Vandenburg's complete innocence and arguing that the other three defendants pressured him into the events that allegedly occurred in the Gillette dorm on June 23.

One source with direct knowledge of an upcoming filing says the allegations might even include questions about the Vanderbilt football team's recruiting practices.

"They don't want to be reined in by local counsel," this source says. "They've basically said, 'If we're going down, we're taking Vanderbilt with us.' "

In a motion to be filed in the coming weeks, Vandenburg's California attorneys are expected to introduce another person into the storyline: a booster some attorneys refer to as a "secret trustee" of Vanderbilt — a Florida resident with family ties to the Vanderbilt athletic program and a history of convictions for DUI and driving without a license. According to the Scene's sources, attorneys will contend she purchased copious drinks for Vandenburg and the victim at the Tin Roof bar, and perhaps other Vanderbilt players as well.

"This is all part of their strategy," says a source familiar with the proceedings. "It stirs the pot. If you get in and create as much chaos as you can, you might be able to quickly settle and slide out the back door."

Given how reprehensible the allegations leveled against Vandenburg are, the upcoming tactics are a last-ditch effort to save the former football player, says an attorney who has been a part of many private discussions with prosecutors. He described the California attorneys' expected moves as a shakedown that will yield very little.

"What else can they do? You go after everybody in sight, you do everything you can think of, to obfuscate the issue," he says. "That works in some places. It does not play well in Tennessee." 

Email editor@nashvillescene.com.

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