On the eve of their trial, the attorney for one of two Ohio high school football players charged with raping a girl after an alcohol-fueled party said Tuesday that moving forward with the case is "patently unfair and un-American" because important witnesses haven't been compelled to testify.
The attorney for the 16-year-old player filed a motion Monday saying that further prosecution of the 16-year-old violates his due process and equal protection rights and asks the judge or state to dismiss the case.
"You have case where it's clear -- clear -- that basic, fundamental, constitutional guarantees are not available to this child, my client, to put on a defense," Walter Madison told The Associated Press. "As such, it is patently unfair and un-American to continue knowing that that is not available."
The 16-year-old and a 17-year-old are scheduled to go on trial Wednesday in Jefferson County juvenile court in Steubenville on charges they attacked a 16-year-old West Virginia girl last August. Their attorneys have denied the charges.
But the attorneys for both teens said their clients will be denied a fair trial because of the availability of crucial witnesses. A West Virginia judge's ruled last week that three juvenile witnesses there could not be compelled to testify in the Ohio case.
"These potential witnesses have been threatened because their testimony is viewed as helpful to Juvenile Richmond's innocence," Madison wrote in his motion. "These witnesses are the best friends of the alleged victim."
Ohio Attorney General Mike DeWine's office declined Tuesday to comment on Madison's motion, which also raised issues including pretrial publicity and concerns for his client's privacy.
Attorneys representing the 17-year-old argued in a similar motion Monday that one of the witnesses was a friend of the girl and can testify to the alleged victim's alcohol intake and relationship with Mays.
Mays' attorneys Brian Duncan and Adam Lee Neeman argue that the multiple out-of-state witnesses are "essential to presenting a complete defense."
They said the witnesses have participated in videotaped or documented interviews with Steubenville police and have offered statements that would support their client's position that he did not rape the girl.
In an order last week, Hancock County Judge Ronald Wilson ruled that no legal case was cited from anywhere in the country to support the argument that the three West Virginia juveniles can be compelled to testify in Ohio.
Ohio and West Virginia law is different for a juvenile delinquency hearing compared to a criminal trial, Wilson said in the four-page ruling on March 6.
The request for the subpoenas came through Ohio Judge Thomas Lipps, after defense attorneys filed motions with him asking that the three witnesses appear at the trial.
Dozens of witnesses for both sides are expected to testify at the trial. Their testimony is considered crucial because the girl was severely intoxicated that night and appeared to be passed out at times, according to several witnesses.
The Associated Press contributed to this report.
Editors’ Note: The Associated Press named the minors charged due to the fact they have been identified in other news coverage and their names were used in open court. FoxNews.com will not name the defendants.