Special Prosecutor Sought

FAYETTEVILLE — The attorney for a woman who said she was sexually assaulted by University of Arkansas athletes at a fraternity party is asking a special prosecutor be appointed to look into the case after Washington County prosecutors declined to file charges.

Don Bass, an attorney from Springdale, contends the University of Arkansas Police Department, which investigated the case, is a subpart of the university and may have had an interest in seeing a favorable outcome because of revenue from merchandising and ticket sales.

Bass also contends Washington County Prosecuting Attorney John Threet may have refused to file charges because he is too close to the university's Athletic Department. Threet's stepfather-in-law is Frank Broyles and his brother-in-law is Kevin Trainor, a spokesman for the department. Broyles, who retired at the end of 2007, was athletic director for 34 years.

"A system that allows a giant governmental entity to investigate itself is fundamentally flawed, and a government agency that unquestioningly accepts the results of such an investigation and refuses to act in the face of clear evidence is negligent in its duty," according to the motion.

The motion also says prosecutors and police refused to look at further evidence, including a rape kit done at a local hospital two days after the alleged assault, or request further testing of evidence. Bass said the evidence could cast doubt on the player's assertion the sex was consensual.

Semen was found on the woman's clothing and on swabs, according to the motion.

"I hope that a special prosecutor is appointed and they work with some law enforcement agency besides UAPD," Bass said. "I hope that this gets further investigated somehow. The people put in charge of doing this have stopped at a time when all investigative work and logic says that you don't stop there."

Threet said he has no problem with a judge appointing a special prosecutor to look at the case and has told Bass that repeatedly.

"Our issue was insufficient evidence that force was used or that she was so intoxicated she couldn't communicate her lack of consent or that she was unaware a sex act was occurring," Threet said. "Whether sexual activity occurred has never been our issue."

Threet said DNA evidence would do nothing to change that. He also said witness statements the acts were consensual have been consistent and no one with a new story has come forward.

The university announced last month the players involved will serve two to three game suspensions. The school did not name the players, but Marcus Britt, Glenn Bryant and Nick Mason were identified in the incident report. Point guard Courtney Fortson was not named in the report, but has been suspended for an unknown length of time for a comment he posted on Twitter while his teammates were being investigated.

Fortson also was mentioned in the motion filed Tuesday. One example used in an attempt to illustrate UAPD's relationship refers to a videotaped interview between UAPD Lt. Marvin Rice and an "Assistant Coach Jones," whose full name is not included.

"I don't do anything to an athlete that I'm not comfortable with the fact that this is going to become national news," Rice is quoted as saying in the interview, according to the petition. "It's like (UA basketball player) Courtney (Fortson) with the textbooks. I just took care of that; it's a minor thing."

All the circuit judges in Washington County have recused from the case. The request for a special prosecutor will now likely go to the Arkansas Supreme Court.

The motion was filed at the request of the alleged victim's father.

An investigation by the University of Arkansas Police Department and the prosecutor's review of the case showed insufficient evidence to issue arrest warrants, officials said.

The 18-year-old freshman student reported to police she attended a party Aug. 27 at the Phi Gamma Delta fraternity where she drank a large amount of alcohol. She said three basketball players raped her in a private room.

Deputy Prosecuting Attorney Dustin Roberts reviewed the university police investigation and concluded Sept. 8 no charges would be filed.

"There's not probable cause to believe a rape occurred," Roberts said at the time. "There's no indication of a provable crime here. Based on the evidence we have, it seems to have been consensual."

Roberts said he interviewed the woman and she doesn't remember much of what happened.

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