Prosecutors are poised to argue that former football standout Brandon Vandenburg was a leader in the 2013 gang rape at Vanderbilt University and deserves more time in prison than the minimum term.
Vandenburg, 23, will return to a courtroom Friday to be sentenced in the case that brought to Nashville a national spotlight on how universities respond to sexual assault. He has been in jail and added to Tennessee's sex offender registry since a jury convicted him in June.
Because of the verdicts against him, Vandenburg faces 15 to 25 years in prison, which is set in Tennessee law. Court documents indicate prosecutors will argue for a term toward the top of that window, and legal analysts say there is evidence they might be successful.
Vandenburg's sentencing was postponed once before because of a large number of letters of support sent to the judge on his behalf. The judge typically reviews those before sentencing, and prosecutors have a chance to challenge them.
Cory Batey, one of Vandenburg's former teammates, received 15 years in prison, the minimum sentence for his role in the rape.
Criminal Court Judge Monte Watkins sentenced Batey, 22, in July. The state and victim said he deserved 25 years. Watkins also will sentence Vandenburg.
"On the letter of the law, Watkins is certainly justified in giving Vandenburg more than he gave Batey based on his record, his history and his conduct," said Jim Todd, a Nashville lawyer and former prosecutor who helps The Tennessean as a legal analyst.
The victim now lives out of state. She was unconscious in the early morning hours of June 23, 2013, when Vandenburg carried her into his dorm room and Vandenburg's teammates assaulted her, according to trial testimony.
A presentencing report, which is like a profile of a defendant based on criminal records and interviews, says prosecutors will argue that Vandenburg should get a longer prison term. The document cites Vandenburg's criminal history, says he was a leader in the attack and treated the victim with exceptional cruelty, among other reasons.
Watkins can weigh each factor in determining Vandenburg's sentence.
"Vandenburg has more aggravating factors than Batey," Todd said. "It can be argued, probably successfully, that he was the leader in the commission of this offense. It can be argued successfully that he has a criminal record, which Batey did not, because of his problems he had in California."
With the rape charges pending, Vandenburg was involved in an incident at his brothers' school in Palm Desert, Calif., in February 2014. Court papers said Vandenburg scratched a school security officer in an altercation when Vandenburg went to pick up one of his brothers. He pleaded guilty to using offensive words in a public place and received a sentence of probation, according to court records.
Since then, Vandenburg has gone to trial twice. In January 2015, Vandenburg and Batey stood trial together, and a jury found both guilty. But Watkins declared a mistrial because of an issue with a juror's honesty. Batey stood trial again in April, and Vandenburg faced his second jury in June.
In all those proceedings, Vandenburg has chosen not to testify. He can speak at Friday's sentencing hearing. His family and other supporters also will have an opportunity to speak on his behalf.
Todd said it may be important for the defense to try and explain why Vandenburg did not stop the attack on the woman, whom he had been dating.
"If I’m a judge, I want someone to tell me why it happened," Todd said. "That way I can understand why it happened and if it will happen again. They made a choice to treat another human like dirt.
"That’s one that the defense needs to explain."
It is likely that Vandenburg's alcohol use will be discussed. His defense lawyers, Randall Reagan of East Tennessee and Albert Perez of California, portrayed Vandenburg during trial as a young man overcome by pressure to drink and who became a witness to a violent plan carried out by three teammates. Charges against two of them, Brandon E. Banks and Jaborian "Tip" McKenzie, are pending. Banks and McKenzie have pleaded not guilty.
The presentencing report says Vandenburg attended an alcohol treatment program while incarcerated.
And it says that Vandenburg's "current situation caused him drinking problems."
Guilty as charged
A jury found Brandon R. Vandenburg, 23, guilty as charged of the following crimes after a six-day trial in June. Prosecutors successfully argued that although Vandenburg did not sexually assault the woman, he was guilty under a theory of criminal responsibility.
- five counts of aggravated rape
- two counts of aggravated sexual battery
- unlawful photography
His sentencing is scheduled for 9 a.m. Friday.
While appeals typically start after a sentencing, Vandenburg's lawyers have previously sought review of his case at the Tennessee Court of Criminal Appeals.
Court records show that in June, just one week before the start of jury selection, Vandenburg's lawyers Troy Bowlin and Randall Reagan asked the appeals court to jump into Vandenburg's case. Three appeals judges unanimously denied the request.
The defense team asked the court to reverse several of Judge Monte Watkins' pretrial rulings, one of which prevented them from using certain expert testimony about Vandenburg's mental condition.
The appeals judges noted that Vandenburg's lawyers did not include documentation of Watkins' rulings and delayed their appeal of Watkins' May 18 order to just one week before jury selection. They denied the emergency appeal, saying it was filed merely because Vandenburg's team disagreed with Watkins' ruling.
"The trial court simply did not so far depart from the accepted and usual course of judicial proceedings as to require immediate review," the opinion from judges Thomas Woodall, Robert Wedemeyer and Robert Holloway reads.
Bowlin has since gotten off the case, citing conflicts that arose after trial.