Exclusive: Erica Kinsman's attorney talks Winston, assault in sports

“Over the past two years, this survivor of sexual violence has had to endure a delinquent police investigation, a hostile FSU athletic department, and Mr. Winston's bullying lawyer,” said Clune in a statement released Thursday. “But the more these forces sought to silence her, the more determined she has become to step forward and hold Jameis Winston accountable for his actions. With the support of her family, she is prepared for this fight and for the counterclaims and the smear campaigns that will surely follow.”

Headline-making cases involving athletes, such as those taken on by Clune and Kerr, has helped shape a popular belief that athletes are treated differently in sexual assault cases.  Almost six in 10 Americans believe college athletes who commit sexual assault are not treated the same as other students, with 36 percent of those polled saying the athletes are treated less harshly and 22 percent saying they're treated more harshly, according to a recent HBO Real Sports/Marist poll.

According to New York attorney Peter Ginsberg, it's true that sexual assault cases involving athletes are rarely straightforward. But not in the way Kerr and Clune say.

Ginsberg, who was featured as part of our Sex Crimes on Campus town hall in November 2013, represented Dez Wells, a former basketball player at Xavier University. Xavier expelled Wells after a classmate accused him of sexual assault in 2012. But when the accuser didn’t press charges and the local prosecutor declined to pursue the case, Wells sued the school with Ginsberg's help. They settled in April, and Wells went on to transfer and finish out his career at the University of Maryland. This summer, Wells will enter the NBA Draft, where he's expected to face questions from teams regarding his time at Xavier.

In the last two weeks, “America Tonight” spoke with Kerr and Ginsberg, separately, and asked them the same questions about cases involving their respective clients, Kinsman and Wells. It's a rare glimpse at the differing perspectives of attorneys who've both prosecuted and defended athletes either accused of or charged with sexual assault.

They spoke at length about their experiences in those cases, the public reaction toward the accusations and how their clients are faring today. Answers have been edited for brevity and clarity.

On the first case they were aware of when an athlete was accused or convicted of sexual assault:

Kerr: There have always been high-profile stories involving athletes, going all the way back to when I was in college. Today, there's greater than normal interest in the topic, it seems.

I never focused on it until early 2003 when the first of these cases found its way to our office. That was when Lisa Simpson and her parents in the Colorado case were interviewing me. That was the beginning. Twelve years ago, that set a whole new course for my law practice, as well as my level of enlightenment on the topic.

Ginsberg: Shortly after I left the U.S. Attorney’s Office, where I was a federal prosecutor for seven years, I was introduced to a couple high-profile Dallas Cowboys players, Michael Irvin and Erik Williams, who were falsely accused of a rape. Ultimately, the woman was prosecuted for filing false claims, and my clients sued both the media outlets involved in publishing the story and the Dallas Police Department.

That was the first time I realized how vulnerable high-profile athletes are because for the most part, people accepted the allegations as being true.

On how they got involved with their clients 

Kerr: [Kinsman] was represented by Patricia Carroll, who is very close to her family in their small community north of Tampa. Patricia was really looking for lawyers who had expertise in Title IX and civil rights to take on those claims because they’re pretty specialized.

In January of last year, I spoke with her at great length about the situation. That month, John [Clune] and I flew down to meet the family and Patricia. That’s really what started everything.

Ginsberg: I make it a practice not to get involved in cases that I’m not proud to go home and talk about with my family. Frankly, when I first heard about Dez’s situation, I was skeptical and reluctant to get involved. I met with the person who asked me to consider Dez’s situation for a significant amount of time.

Then, I met with Dez. As I gathered the facts and spoke to Dez and developed a better understanding of who he was, in fairly short order, it became clear to me the allegations against him were false and he needed vigorous representation to regain his reputation and standing in the community.

On what they recall being the first thing that stood out about their clients’ cases:

Kerr: In terms of case evaluation, it was immediately apparent [that] what happened to Erica just crystallized so many issues around the incredible entitlement and power of big-time college athletes. And in the case evaluation, we saw it was just a very, very strong case. Usually, when you’re going through the process of learning the facts of the case and learning to decide whether to take it, there’s usually something wrong and it tends to be the same things over and over again: like, the victim was extremely intoxicated and doesn’t remember much; or the victim was so ashamed of what had been done to her and was so much in denial that she took a substantial period of time to report. None of that was present here. That was immediately apparent. Erica cried out for help as soon as she was released from Jameis Winston – “Someone please help me.”

Her memory has been misreported as problematic, as it is actually very sharp about what happened to her at the hands of Jameis Winston. This was a case that exposed the issues at the highest level because he was a Heisman Trophy winner and the facts were very, very strong. She’s also a very, very appealing young woman, and very mature for her age. Spending that first day with her brought home what an incredibly admirable, mature young woman she is. And someone I knew I’d be proud to represent.

Ginsberg: First of all, Dez struck me as a kind and decent person. The more he spoke about the allegations, it was with not only genuineness but also terror and raw emotion. Dez also told me about a very personal event involving one of his family members, and that put into perspective, for me, how I simply could not believe Dez could have done what he was accused of doing.

I spoke with his friends and family members, and the picture of Dez I developed was absolutely inconsistent with the horrific allegations leveled against him. From that, I became increasingly comfortable and anxious to represent him.

Kerr: She’s had to deal with a whole lot. That started from the time her rape accusations just exploded unexpectedly on the national news, which put her life at risk and forced her out of Tallahassee and out of her dream university forever, probably. That’s probably the worst in terms of having to handle the incredibly intense and often very hostile pressure.

Erica is really resilient person, so she’s handled it really well. She and her parents do not want the attention. She’s not going on the national news circuit and giving interviews at all. She doesn’t want to do that. That’s her personal choice, and she’s turned down many, many requests. That has helped her ability to withstand everything.

Ginsberg: More than anything, I go by the philosophy that people should get second chances. That’s especially the case when someone has been falsely accused of something and has had his life detoured the way it happened to Dez.

I give Maryland an awful lot of credit for taking a chance on him and facing up to the difficult publicity. And I give Dez even more credit because he had the courage to take his position in a very public way, and faced up to the many people who still believed he committed the crime and didn’t think he should get a second chance.

To this day, Dez faces a reality that people still don’t believe he’s innocent, although that’s become less and less. People who are around him often know he didn’t commit the acts he was accused of.

But what balances that out and makes these cases worthwhile is they almost always have a social impact component. That is certainly the driving force for a lawyer, as well as a client, to not just achieve compensation but to actually make change and make change that will extend beyond the particular circumstances and that school.

That’s what makes it so worthwhile. That’s very emotionally gratifying. I think and hope it will turn out that way for Florida State, too.

Ginsberg: The immediate and constant media attention certainly doesn’t give anyone much of an opportunity to think and contemplate. Everything we say and do is immediately scrutinized. The best way for me to handle it is to ignore the press. I don’t have a Twitter account. I just go about doing my job.

I have it easy compared to my clients. I don’t think any lawyer who provides worthwhile service to his clients can go through that kind of crisis without being emotionally affected by it. At the end of the day, I have it easy compared to someone falsely accused of a horrific act. I have no complaints.