Hearings continued yesterday to determine whether or not Neurosurgery Professor Tracy McIntosh -- who allegedly raped a 23-year-old woman -- will be charged with drugging the woman prior to the alleged rape.
McIntosh was placed on leave from his position at Penn in the spring in response to accusations that he raped the woman in his Hayden Hall office last September. He was arraigned on charges including rape, indecent assault and false imprisonment on July 31.
A hearing was held yesterday to decide whether charges related to the rape should be quashed. A quash indicates that insufficient evidence exists to bring certain charges to trial.
According to Tom Bergstrom, McIntosh's attorney, the motion was successful as Judge Carolyn Temin granted the defense's motion to quash a charge related to the rape. The rape charge will still stand, but "not under any theory that she was drugged," Bergstrom said.
However, Gina Smith, the prosecuting district attorney, said the issue is less concrete. Temin "announced her ruling and then upon my request agreed to continue the case to allow the Commonwealth to put on additional evidence regarding the drug issue," Smith said.
The continuance indicates that a final ruling in the quash has not yet been made, since Smith will not yet be required to file a separate motion to lift the quash. Instead, the judge will allow the district attorney to augment the record before her final ruling is made.
A status hearing will be held next week to determine progress in the case and set a date for ruling on the quash.
At the further hearing, Smith will present additional facts and circumstantial evidence in an attempt to preserve charges that McIntosh used Nembutal -- an animal tranquilizer-- or a similar drug to sedate the woman.
Those facts and circumstantial evidence include testimony from the victim of her severe illness following the consumption of six alcoholic beverages -- four beers and two shots -- after which she repeatedly vomited at Pod restaurant and in McIntosh's Hayden Hall office, among other locations, according to Smith.
Additionally, the victim testified at the preliminary hearing that her memory was episodic, she was dizzy and had difficulty walking and supporting herself.
Smith maintains that there is enough evidence available such that the charges should not be quashed.
"It is an issue to be determined by the fact finder [the judge and jury], not a legal issue to be decided at the quash," Smith said.
The drug issue was discussed this summer in response to accusations that McIntosh used drugs from his University laboratory to sedate the alleged victim after it was determined that some drugs were missing.
However, at a July 10 hearing, a doctoral candidate at the University testified that she used the missing anesthetics while experimenting on 10 guinea pigs. She also testified that the drug use was not recorded due to her unfamiliarity with the logbook procedure.
In addition, the Drug Enforcement Administration performed an investigation of the lab, which, according to University spokeswoman Rebecca Harmon, determined that the drugs were not used for anything other than research.
