Fitzpatrick delayed ruling on the matter for at least 45 days to allow attorneys for both sides to submit additional memorandums and paperwork for the case. Nauss was transported back to Graterford Prison, from which he escaped in 1983. He will remain in Graterford, McAndrews said, until prison officials decide whether to move him. A spokesman from the prison was unavailable for comment yesterday.
Nauss, 42, formerly of Aston and once the vice president of the Warlocks Motorcycle Club, is serving 20 to 40 years for his role in the gang rape and other crimes. The sentence runs concurrently with a life sentence for the 1971 murder of Philadelphia resident Elizabeth Lande.
At issue yesterday was the opening statement made by former prosecutor Edward J. Weiss, in which he allegedly promised jurors that two co-defendants in the rape would admit their guilt and testify against Nauss. The two men never testified, presumably because they were taken into the federal witness- protection program.
Nauss' current attorney, Norris E. Gelman, argued that the statement was planted in jurors' minds.
"We believe that, coming from an officer of the court, it carries a great deal of weight. It cannot be struck," Gelman said. "This was devastating to my client's defense, and it came to the jury unencumbered, unburdened."
He said Malcolm Berkowitz, Nauss' attorney during the rape trial, should have asked for a mistrial or at least objected when it became obvious that the men would not testify.
Berkowitz testified yesterday that he thought a mistrial would have been inappropriate. "I did not think a mistrial would have been granted, and I thought our evidence was strong enough for us to receive a jury verdict," Berkowitz said.
"You think that benefited your client?" Gelman asked of the prosecution's failure to produce two witnesses.
"Oh, I absolutely do," Berkowitz said.
Nauss, clean-shaven and with closely cropped brown hair, also took the stand briefly, to recall Weiss' statement. "They were going to testify and admit their guilt and point the finger at me," he said.
McAndrews said Weiss' failure to produce the two men served only Nauss and portrayed the prosecution badly. "That's an embarrassment in most circumstances," he said.
Should a new trial be granted, the prosecution would have to contend with the facts that authorities have been unable to find the victim and that the doctor who examined her has since been a murder victim herself.