A new court filing in the case against four former Vanderbilt University football players charged with rape seeks evidence of text messages sent by coaches that lawyers for one of the ex-players think could shed light on what happened.
The filing by attorneys for one of the players offers the first suggestion in court proceedings that members of the Vanderbilt football staff might have had some level of involvement in the incident that would be relevant to the criminal investigation.
California-based defense attorneys for former player Brandon Vandenburg said in their motion that a "large amount" of evidence has not been provided to them by Davidson County authorities as it should have been under the rules of discovery in criminal cases.
The attorneys have been reviewing evidence provided on 57 CDs and DVDs, but said some discs were defective and that they have not gotten other items, including statements by witnesses, evidence on other discs, "text messages from witnesses and coaches," and other records.
Vanderbilt spokeswoman and vice chancellor Beth Fortune, in an emailed statement, did not answer questions about text messages from coaches.
"The issues raised by the latest court filing are a matter for the court to determine," she wrote. "Vanderbilt has no role."
Head football coach James Franklin declined to comment after practice Wednesday, and Fortune said Athletic Director David Williams would not discuss the filing.
Defense questions case secrecy
The defense attorneys also challenge a protective order signed by prosecutors and defense attorneys that has kept much of the case secret.
Referring to it as a "gag order," the attorneys called the agreement "troubling and unfair" and said it damaged Vandenburg's right to a fair trial.
"The defense is unable to dispute the truthfulness of much of the evidence leaked and turned over previously," the filing reads.
The attorneys say they have been prevented from sharing case information with anyone other than defense attorneys — which they said prevents them from hiring their own investigators and building their defense.
This new information about the evidence and questions about the protective order appeared in a motion filed in court Tuesday concerning who will represent Vandenburg. A week ago, his two Nashville-based attorneys — David King and Nathan Colburn — filed a motion asking to leave the defense team.
Their departure would mean Vandenburg's two California-based attorneys — Albert Perez Jr. and Eugene Osko, a retired judge — would need to find another local lawyer to sponsor their involvement or face being excluded.
The 10-page filing by Perez asks that King be required to remain on the case, at least until another local attorney can be found. King took on the case initially, but when he had a medical emergency, Colburn stepped in.
Perez expressed concern about Colburn's ability to handle the "serious and complex" case, claiming that Colburn didn't file several motions and erred when he signed the protective order to keep video and photo evidence secret.
Osko, who included a written statement among the 10 pages, said Colburn signed the order without reading it or discussing it with him, Perez and Vandenburg.
Osko wrote that Assistant District Attorney Tom Thurman, the prosecutor on the case, "made (Colburn) sign the order before he would give him any discovery."
A spokeswoman for the district attorney's office declined to comment on the motion and protective order, saying only that "the appropriate time and place to respond to the motion will be in court."
Colburn said he hasn't done anything wrong.
"It's a difference in opinion in how to proceed in the early parts of the case," he said. "We're just trying to do what's best for our client."
A hearing on whether King and Colburn will withdraw has been moved to next week. Vandenburg's attorneys have also asked that a summer 2014 trial date be pushed back.
Vandenburg, 20, from Indio, Calif.; Cory Batey, 19, of Nashville; Brandon Eric Banks, 19, from Brandywine, Md.; and Jaborian McKenzie, 18, from Woodville, Miss., are each charged with five counts of aggravated rape and two counts of aggravated sexual battery.
Police said the men raped an unconscious 21-year-old student inside Vandenburg's dorm room in Gillette Hall on June 23.
Vandenburg also is charged with one count of unlawful photography and tampering with evidence.
All four have pleaded not guilty and are free on bond.
A fifth former player, Chris Boyd, pleaded guilty to trying to cover up the assault.
In Boyd's court hearing, authorities presented a series of text messages he sent. One included the name "Carta" among individuals who helped moved the victim. Four days after the hearing, the district attorney's office said Boyd "wrongly identified" quarterback Austyn Carta-Samuels in the message. Prosecutors said Boyd only testified that he had sent those messages and did not testify to the accuracy of what he had typed at the time.
To date, neither authorities nor Vanderbilt officials have said publicly whether Carta-Samuels was present. He was named on indictments among witnesses who may be called to court, along with two other players.
Two men from California face charges of tampering with evidence.
Newspaper pushes for records
Meanwhile on Wednesday, The Tennessean sent a letter to Nashville Mayor Karl Dean asking him to reconsider the city's prior rejections of a request for records related to the rape case.
Appealing to Dean's prior legal experience as the city's public defender and Metro legal director, the newspaper and its attorney asked him to "intervene and overrule the current rejection by your Law Department head."
The letter comes two weeks after the newspaper asked the city attorney to reconsider.
Citing the Tennessee Public Records Act, attorney Robb Harvey has questioned the legal rationale for the city police department's denial of the Tennessean's records request.
None of the evidence has been put in the court file, and attorneys for all four defendants signed an agreement to keep video and photo evidence secret.
Harvey argues that there's a difference between records created by the district attorney — which can be kept secret — and records given to the authorities by other groups, such as the university.