Bloodless Coup

Or you could be a rape victim who can't say the words "victim," "sexual assault," or "rape."

Posted by: binky at June 21, 2007 02:13 PM | PERMALINK

Can you spell a-p-p-e-a-l? That trial judge is just asking for a mess of trouble for the parties involved in this case even if state law does grant a ton of discretion to the court.

Posted by: Armand at June 21, 2007 03:19 PM | PERMALINK

I was just thinking of that poor woman, having to go through all of that, and then an appeal?

Posted by: binky at June 21, 2007 03:26 PM | PERMALINK

hmmm. odd case, and i'm trying to piece it together. i have no coherent comment, but i do have a few observations.

first of all, a procedural point: she won't be "going through" anything pertaining to the appeal. the appeal, if any, will be lodged by the prosecution. her role as a witness is relevant only at trial; on appeal, the only thing she'll have to worry about is a lack of closure. i'm not saying that's nothing, but she'll only be directly involved if and when a retrial occurs, by whatever rules.

second, this from the iambecauseweare link, which in turn is quoting the Lincoln Journal Star:

Bowen?s allegation marked the third time since 2001 a woman has claimed she was sexually assaulted by Safi. Neither of the previous cases resulted in a conviction, but both of those women were permitted to testify for the state at Safi?s trial.

?That particular evidence was why we were deadlocked,? said jury forewoman Cheryl Larson, who favored acquittal.

i find this interesting on at least two fronts. first of all, it's incredibly rare that this sort of prior, but not directly related bad act testimony is admitted at trial. if the denial of the use of the word "rape" etc. is a major boon to the defense, allowing the prosecution to bring in prior accusers of the defendant, accusers whose accusations weren't even vindicated in prior court proceedings, is both extraordinary and highly damning to the defendant, at least partially offsetting the counterbalancing terminological issue.

which leads to my second point based on this passage: if the prosecution only got a 7-5 for conviction, and did so even with the introduction of highly inflammatory prior bad acts testimony, and one of the jurors says this is why the jury deadlocked, it's highly suggestive that, absent that evidence, the jury would have voted to acquit. i can't know that -- only the jurors can -- but it's not likely that the prior bad act testimony swayed fence-sitting jurors in favor of acquittal. also notable is the observation, evidently acknowledged by the jurors, that the prior bad acts, despite the court's instructions designed to protect against this, clearly affected the jurors' perception of the defendant, which is precisely why such evidence is seldom permitted.

(to be clear, the article does a passable job of explaining the common scheme exception to the admission of such evidence, where the claim is that the defendant has an MO that he follows time and again, but this is a marginal example of that at best, and it seems to me just as likely that the admission of prior bad acts ultimately will provide grounds for appellate relief as the terminological restrictions.)

then there's this, from the same article: "For many of the jurors, the case turned on the credibility of Safi and of the woman he stood accused of assaulting, former University of Nebraska-Lincoln student Tory Bowen. Both testified, and neither ? according to most of the jurors ? was completely believable." also, the article later on details discrepancies in the victim's testimony that are pretty serious, and would create real problems in a jury trial regardless of what you call the alleged offenses.

all of which adds up to textbook reasonable doubt, procedural (mis)steps aside. and nothing about this suggests the hesitation it caused in jurors was a product of the terminology permitted to be used at trial.

it's dangerous to get worked up about the anomalous case, especially on incomplete information. i don't pretend to know a) what happened on the night in question or b) whether the trial judge was out of line in the full context of the case, for what reason, and to whose benefit (that would require sampling the rationales offered by the court, and i'm just dying to read them (because it's admittedly bizarro stuff, the terminological rulings) but there's no link anywhere and trial court proceedings aren't often available in westlaw).

i comment, in any event, because while it's fun to try to turn one of these cases into an exemplum of some deeply troubling problem in The System, all too often it's just a shitty case with bad facts, and to draw broad conclusions upon hearing it, or to coin broad rules in an effort to compensate for an anomaly, tends to do more harm than good, without bias with regard to who ultimately gets the shaft with the bad law that results. sometimes, evidentiary rulings look a lot worse decontextualized and spun by laypeople than they really are.

and if all of that isn't enough to get me flamed (it is, i know, it is), there's this as well: witnesses typically are precluded from testifying as to legal conclusions. rape, by definition, is a crime, and to style something as such is therefore a legal conclusion. now in common parlance, and in the vast run of cases, use of that word plainly is permitted. and there's really no argument in my mind that, at a minimum, a prosecutor should be free in opening and closing arguments to call an alleged rape a rape, and he or she is in pretty much every case in pretty much every courtroom, if only for rhetorical effect. but by the same reasoning, the defendant, whose defense is consent, is free to call it sex for precisely the same reason. which makes lithwick's approval -- "She claims, not unreasonably, that describing what happened to her as sex is almost an assault in itself." -- more than a little specious, or at least sloppy, in the legal sense. after all, the (hypothetical) wrongfully accused rape defendant can just as validly claim that calling what he knows in his heart to have been consensual sex (for hypothetical purposes, she was stone cold sober and answered "yes" to a direct request for permission to proceed) "rape" "is almost an assault in itself."

all of which merely serves to illustrate how imperfect the system necessarily must be, and how ugly rape cases really are for everyone involved. i think they vie with parental rights terminations and death penalty cases for most miserable cases to deal with.

Posted by: moon at June 21, 2007 07:59 PM | PERMALINK

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