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'Fed-up'

Judge in Derrick Rose civil rape case gives lawyers gag order

At the final pretrial hearing before the scheduled start of the civil case alleging that Derrick Rose and two of his friends drugged a woman, broke into her apartment, and raped her while she was unconscious, the presiding judge on Thursday gave lawyers on both sides of the contentious, controversial and highly public matter a clear and concise directive: stop talking.

From The Associated Press:

A judge on Thursday ordered lawyers handling a rape lawsuit against Knicks guard Derrick Rose to temporarily stop talking to reporters, faulting attorneys for actions that have raised pretrial publicity about one of the NBA’s stars.

U.S. District Judge Michael W. Fitzgerald said Thursday he was inclined to issue a longer gag order in light of pretrial publicity about the case, which has included interviews with Rose’s accuser and her attorneys allowing a letter confirming a police investigation of her rape allegations to become public.

Fitzgerald told the woman’s attorney, Waukeen McCoy, that his team’s filing of the letter in the public court docket was ”borderline unethical.” He also said legal filings from Rose’s attorney, Mark Baute, were tailored for the press and not to secure favorable rulings for Rose.

The judge has also chastised Rose’s attorneys for continuing to imply in filings that any evidence the 30-year-old plaintiff, thus far referred to only as “Jane Doe,” had in the past been “sexually adventurous” with Rose (both parties acknowledge the two had a consensual sexual relationship in the past) or drank alcohol with Rose on the night of the alleged incident “in any way affects whether Plaintiff consented to group sex” later that night. Rose has steadfastly maintained his innocence.

“The Court previously made clear to Defendant Rose that such rhetoric is unworthy of this Court,” Fitzgerald wrote in an order handed down last week. “That the Court now grants Defendant Rose’s motion to preclude Plaintiff’s use of a pseudonym at trial is in no way an invitation to continue his attempts to prejudice Plaintiff in this way. If Defendant Rose continues to utilize language that shames and blames the victims of rape either in his motion practice or before the jury, the Court will consider sanctions.”

Rose’s lawyers continued to steer in that direction in motions filed last week, though, according to Lindsey Adler of Deadspin:

In the latest filings, Rose’s lawyers argue that bringing up Doe’s past is valid because it’s necessary to refute her own version of events, which include her discussing how she was very conservative and that Rose was the aggressor in their relationship. But, as Rose’s lawyers have done in the past, they take the start of a possibly relevant legal argument and use it as a chance to sling mud at Doe as they do here with the phrase “some plaintiffs.”

“The same is true of Ms. Doe’s efforts to present herself as ‘conservative,’ ‘prudish,’ and ‘shy’— this opposition brief is not the place to go into Ms. Doe’s past, except to say that some plaintiffs are better served by focusing on the evening in question, and avoiding any effort to present herself as a supposedly chaste and naïve and shy person.”

They struck a similar note in motions filed Wednesday, according to court documents obtained by Lindsay Gibbs of ThinkProgress, who sees the filings as an indication that “despite the threat of sanctions by the judge,” Rose’s team is prepared to use Doe’s “entire sexual history, before and after the alleged assault […] against her in court.”

In open and public courtrooms, the 30-year old Ms. Doe does need to recognize that if she and her lawyers are going to sue and ask for millions of dollars, by presenting herself as someone with a loss of consortium claim, she has opened the door to a cross-examination that is better left avoided. The same is true of Ms. Doe’s efforts to present herself as “conservative,” “prudish,” and “shy” — this opposition brief is not the place to go into Ms. Doe’s past, except to say that some plaintiffs are better served by focusing on the evening in question, and avoiding any effort to present herself as a supposedly chaste and naïve and shy person. […] For this trial to go smoothly and be finished quickly, the single biggest pretrial “clean up” issue is the decision that Ms. Doe’s counsel needs to make on whether Ms. Doe is in fact seeking to pursue a loss of consortium theory, and whether Ms. Doe will seek to present herself as a naïve and sexually inexperienced 27-year-old with a conservative mindset. This declaration is not the right place to provide detailed revelations concerning Ms. Doe’s actual lifestyle and sexual experience level, both before and after August 27, 2013. Suffice it to say that Ms. Doe is three years older than Mr. Rose, Mr. Allen, and Mr. Hampton, who were 24 years old at the time, and her lifestyle was far more advanced, aggressive, and experienced than she appears to want to now present. This sort of factual information, if affirmatively put at issue by Ms. Doe, is the sort of theory that Ms. Doe could and should avoid, because it goes to her credibility.

Doe’s attorneys responded by arguing that any evidence purporting to paint her as “sexually promiscuous” — including the potential calling as witnesses of former friends of Doe who would reportedly tell jurors that Doe “privately admitted she had consensual group sex with Rose and two friends on Aug. 27, 2013” and that she had denied being raped a few weeks after the alleged assault — should be barred at trial. From Nancy Dillon of the New York Daily News:

“Her past sexual conduct (as alleged by defendants) does not, as defendants would argue, create emotional calluses that lessen the impact of unwelcomed sexual assault and battery,” her lawyer Brandon Anand wrote in his motion filed Wednesday. “The fact that the Plaintiff Jane Doe may have welcomed sexual advances from Defendant Rose at some point in time before the morning of August 27, 2013 or even welcomed sexual advances from certain individuals in her past, has absolutely no bearing on the emotional trauma she may feel from sexual assault that is unwelcome,” he wrote.

Whether such testimony will be allowed remains to be seen. Even if it is, it might not necessarily constitute a “smoking gun” that dooms Doe’s case, according to sports lawyer Dan Werly of The White Bronco:

First, Doe’s attorneys will make evidentiary objections to this testimony at trial and the judge will rule on whether she is [allowed to] testify about this conversation. Second, even if it is allowed in, Doe may be able to minimize its impact at trial. For example, she may testify (and it is not unreasonable to believe) that she wasn’t comfortable sharing the truth with Chavez for a variety of reasons. Moreover, Doe has numerous witnesses saying that she did tell them that she was raped and Rose has at least one more witness (another one of Doe’s “friends”) that has testified she never called the encounter rape. Thus, it will be up to the jury to decide which witnesses are most credible.

Fitzgerald also upheld his decision to deny Jane Doe’s request to maintain her anonymity during trial. Doe’s attorneys had filed a motion for reconsideration, arguing that the revelation of a “current and open” criminal investigation into the matter constitutes new and relevant information that should make the judge reconsider his previous call.

Fitzgerald rejected that premise, standing on his belief that allowing Doe to remain anonymous at trial “might lead jurors to mistakenly conclude that her anonymity reflects an opinion [on the judge’s part] about whether Rose ought to be found liable,” according to Sports Illustrated’s Michael McCann.

“My concern is the jury,” Fitzgerald said at Thursday’s hearing, according to the New York Post.

Barring a late-breaking settlement in the case, in which Doe is seeking $21.5 million in damages, the civil trial is set to begin on Tuesday, Oct. 4. What will transpire in court remains to be seen, but what seems clear is that neither side has curried much favor with the judge.

“I am really fed up with both of you,” Fitzgerald told both sets of lawyers on Thursday, according to the Daily News.

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