Tuesday, December 11, 2018
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Ninth Circuit:
Defense Verdict in Rose Rape Case Not Marred by Evidentiary Error
Panel Finds Evidence Relating to ‘Sex Belt’ Not Prejudicial
By a MetNews Staff Writer
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—AP In this file photo, Derrick Rose plays during an NBA game in Minnesota. |
A defense verdict in a civil case in which a woman accused basketball luminary Derrick Rose and two other men of raping her in 2013 was affirmed by the Ninth U.S. Circuit Court of Appeals yesterday, with a three-judge panel rejecting the contention that evidence of text messages relating to a “sex belt” was improperly admitted.
The plaintiff, identified as “Jane Doe,” had texted Rose on Aug. 26, 2013, saying that she was coming to his house that night, bringing a “sex belt”; she arrived and made a gift of the item to him. According to her version, the defendants—Rose and two assistants, Randall Hampton and Ryan Allen—drugged her, put her in a taxicab, with instructions she be taken to her home—and later that night, trespassed into her apartment, with each raping her.
An eight-member jury found in favor of the defendants after a 10-day trial in 2016 in the courtroom of District Court Judge Michael W. Fitzgerald of the Central District of California. Doe had sought $21 million.
Rose, now a Minnesota Timberwolves point-guard, was with the Chicago Bulls at the time of the alleged assault.
‘Highly Prejudicial’
At oral argument in Pasadena on Nov. 16, Doe’s mid-Wilshire attorney, Brandon J. Anand, insisted that evidence relating to the sex belt was “highly prejudicial.” Second Circuit Judge Barrington D. Parker, sitting by designation, asked that his “naiveite” be forgiven, but asked what such a device is.
The lawyer said it is a belt that is “put on a woman for leverage in a sex act.”
He added:
“I have a limited understanding as well.”
Anand asserted:
“She was bringing a gift to Mr. Rose. It had nothing to do with the issue of consent.”
Discretion Not Abused
The panel, in yesterday’s memorandum opinion, disagreed, saying:
“The district court did not abuse its discretion by admitting the text messages referring to the sex belt. The district court found that the sex belt texts were intertwined with evidence of Doe’s alleged sexual activity earlier in the night at the mansion. The sex belt texts were potentially useful to the defense to explain their theory of the case, attack Doe’s credibility, and as impeachment material.”
The opinion notes that there was no testimony as to how the belt was used and no photographs of it. It points out:
“After opening statements, the district court also told the jury that any evidence of the sex belt was ‘a waste of time…[and] a distraction.’ Such instructions from the district court were sufficient to cure any potential prejudice from admitting the sex belt texts into evidence.”
Star Witness
Rose’s key witness was Gabriela Chavez, who had been a friend of Doe. She testified that while they were partying at a night club in Las Vegas two weeks after the incident, Doe admitted to her that while she had sex with all three men she accused, she had not been raped, and was upset at Rose only because he had not contacted her since then. They had been dating for about two years.
The opinion declares:
“The district court also did not abuse its discretion by admitting the five photos from the Las Vegas trip or by admitting Gabriela Chavez’s accompanying testimony. The district court did not err in applying the Rule 403 balancing test, and found that the probative value of the photos and testimony was not substantially outweighed by the danger of unfair prejudice….Moreover, the district court instructed the jury on the relevance of the testimony regarding the photos, wanting that the information was only relevant to the jury’s calculation of emotional damages….Chavez’s testimony regarding Doe’s statements that the August 27.2013 encounter was consensual was also relevant.”
Door Opened
Doe testified that the Aug. 26, 2013 text was not something she would normally write but was attributable to her intoxication. That, the panel said, “opened the door” to the introduction of other texts to show the particular message was not atypical.
The opinion notes that Fitzgerald “admitted only those additional texts that would allow the jury to decide whether it believed that Doe never texted in the manner that she did around the time of the incident.”
Assaults on other evidentiary rulings were also rejected.
Judges Unpersuaded
Affirmance was signaled by the judges at oral argument, with Anand’s contentions not meeting with favor. Parker told the lawyer:
“It seems to me that you’re picking on three evidentiary issues in the course of a very lengthy trial. The main issue in this case was: What happened that night between Doe and the three defendants, and you did a good job of presenting your case that what happened on that night was nonconsensual, that she was raped.
“The defendants had, as I look at the record, powerful defenses to that presentation—which, at the end of the day, the jury bought. You had a nine-day trial, this jury was out 15 minutes, and you lost on every claim.
“The jury just didn’t buy your case and, you know, no trial is perfect, but your evidence concerning the night in question came in, and the jury had an opportunity to hear that.”
Parker later said jurors “were out for five minutes and ruled against you.”
Lawyer Responds
Anand responded that the jury had actually deliberated for two hours. He maintained that “highly prejudicial evidence that shouldn’t have come in” did.
He disputed Parker’s statement that jurors “simply bought” the defendant’s version, arguing that “they didn’t hear the full version of the case.” Parker countered that the appellant’s argument, in the briefs, was actually that that the jury “heard too much.”
The lawyer answered that the jury both heard prejudicial matter that should have been barred and deprived of exposure to relevant matter that was wrongfully withheld.
Allegation of Frivolousness
Mark D. Baute of the downtown Los Angeles firm of Baute Crochetiere & Hartley LLP, representing the defendants, insisted that the appeal is “utterly frivolous, in every way.”
He said of the appeal:
“It’s frivolous, bogus. Ninety-five percent of the record was omitted by appellant’s counsel.
“Think about that. You come to court with a fake argument and all you do is cherry-pick the record.”
Labeling the appeal a “sham,” Baute noted his clients have requested sanctions in the amount of $5,000 from Doe’s counsel based on the asserted frivolousness of the appeal, underscoring that payment is not sought from Doe, treatment of whom, he declared, has been, throughout the proceedings, deferential.
The panel yesterday declared that it did not find the appeal to be frivolous.
Circuit Judge Mary H. Murguia sought enlightenment from both lawyers as to what caused Fitzgerald to allow testimony from Chavez as to Doe’s admission to her. He had initially ruled that testimony by that witness would be limited to an authentication of photographs.
Neither lawyer was able to assist the judge in understanding Fitzgerald’s turnabout.
The case is Doe v. Rose, 16-56722.
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