Defense attorneys for a former Vanderbilt University football player charged with rape filed a scorched-earth motion Tuesday asking a judge to dismiss the case or reprimand prosecutors for destroying or failing to preserve evidence.
In a detailed, 24-page filing, the defense team for Brandon Vandenburg wrote that "crucial and material information to the defense of VANDENBURG was destroyed or not preserved."
Vandenburg is one of four former players each charged with five counts of aggravated rape in what police said was an assault on a 21-year-old female student in Vandenburg's Gillette Hall dorm room on June 23.
The defense said evidence provided through discovery included disks with empty file folders and video surveillance in which 55 percent of what was filmed on 14 campus cameras has been deleted.
The filing also includes a new allegation about interactions between the alleged victim and former head football coach James Franklin and former director of performance enhancement Dwight Galt — both now at Penn State University.
Referring to records, the attorneys said the victim was contacted by Franklin and Galt during a medical examination four days after the rape to explain "that they cared about her because she assisted them with recruiting."
It went on to say that at some point, "Coach Franklin called her in for a private meeting and told her he wanted her to get fifteen pretty girls together and form a team to assist with the recruiting even though he knew it was against the rules. He added that all the other colleges did it."
Vanderbilt and Penn State did not immediately respond to requests for comment.
Reached by cellphone Tuesday, Franklin repeatedly said he was "not interested in talking." He declined an offer to hear the allegations.
Later Tuesday, Franklin issued a statement denying any wrongdoing.
"The allegations that I did something wrong are simply not true," he said. "I have cooperated fully with the authorities in this matter but, out of respect for the legal process, I am not able to comment any further."
Among the missing evidence, lawyers said, are:
• the majority of more than 27,000 messages and 220 calls on the alleged victim's phone, of which just 47 calls or texts were provided to the defense;
• text messages between Vandenburg and the alleged victim, as well as between him and former wide receiver Chris Boyd and co-defendant Cory Batey;
• text messages and phone records from three team staff members — former head coach James Franklin, former director of performance enhancement Dwight Galt, and associate director of athletics Kevin Colon;
• texts and social media posts from players and the victim's friends;
• police interview records with a close acquaintance of the alleged victim;
• DNA test results from another man;
• an interview with the girlfriend of former starting quarterback Austyn Carta Samuels; and
• other police notes and medical records.
"In this case, the justice system, thru the prosecutor's office and its prosecutors and detectives, has tainted that fairness and due process standard," Vandenburg's lawyers wrote. "At the core of this argument is Defendant's inability to have a fair trial and put forth a defense."
Susan Niland, spokeswoman for the district attorney's office, could not immediately be reached. The office has denied previous accusations that prosecutors have erred.
The filing describes other evidence that is referred to in records but not provided to the defense, including conversations that attorneys said the alleged victim had with university staff, and text messages and social media postings she made just before interviewing with detectives.
Attorneys said the alleged victim and a friend may have destroyed pictures and text messages from around the time of the alleged rape.
Vandenburg, from Indio, Calif., is charged along with Cory Batey, of Nashville; Brandon Eric Banks, from Brandywine, Md.; and Jaborian McKenzie, from Woodville, Miss.,on five counts of aggravated rape and two counts of aggravated sexual battery. Vandenburg also is charged with one count of unlawful photography and tampering with evidence.
Former Vanderbilt wide receiver Chris Boyd, 21, of Roswell, Ga., has pleaded guilty to an attempted cover-up of the rape in return for testimony against his former teammates.
Miles Finley, 20, of Bermuda Dunes, Calif., and Joseph Quinzio, 20, of Palm Desert, Calif., are charged with tampering with evidence.