NASHVILLE, Tenn. – The trial in the high-profile Vanderbilt rape case is a go after the judge rejected a call to dismiss the charges.
Defense attorneys had hoped to have the rape charges against suspect Brandon Vandenburg thrown out. NewsChannel 5 has learned now that won't happen.
Vandenburg and three other former Vanderbilt football players have been accused of raping a co-ed in an on-campus dorm last year.
In a series of motions and in open court, attorney John Herbison accused prosecutors of everything from losing evidence, to coercing witnesses and to over-reaching on the charges.
"It is evidence of misconduct by the prosecutor," said Herbison at a hearing earlier this years.
"There was nothing improper what-so-ever," responded Deputy District Attorney Tom Thurman.
Now Newschannel 5 has learned the judge has rejected the defense's request to dismiss. This means the trial will go on as scheduled in November.
So now Vandenburg's legal team plans to attack key evidence in the case.
"If I were the District Attorney General this would give me pause and some doubt," said Vandenburg attorney Fletcher Long.
Remember, Metro police questioned Vandenburg after the alleged assault.
In the summary report Vandenburg talks about himself, his co-defendants and the woman:
"Corey Batey, Brandon Banks and Tip McKenzie were outside the dorm and he asked them to help get her to his room. They carried her to his room and put her on the floor."
Vandeburg said the others then "began slapping her butt" and touching her genitals. He told police he "took video of such with his cellphone."
It's very likely that statement will be part of the prosecution's case. But defense attorneys said police never read Vandenburg his rights before questioning him.
So they'll plan to argue that his statement and that cellphone video, perhaps the most compelling evidence in this case, should not be admitted at trial.
But for that evidence to be suppressed, defense lawyers must convince the judge that Vandenburg felt he had no choice but to talk to police.
And that's the trick.
Vandenburg was not under arrest at the time. He spoke on his own without a lawyer present.
But his defense team will say he did so fearing he'd lose his football scholarship and that he simply did not feel free to say no to police.
Vandenburg and fellow defendant Cory Batey have been scheduled to go to trial together on November. It's expected lawyers will file motions soon to try them separately.