More people climb aboard the prosecutorial silliness train

CrimProfBlog points to a story in which prosecutors are whining about how there is a “trend” of judges not letting “victims” say the word “rape.”  I tried to comment, but it wasn’t deemed worthy.

Unfortunately, when they get in front of a microphone, these prosecutors know they are talking to the lay people (whom they really detest) and oversimplify.  Since lay people didn’t go to law school, they don’t deserve nuance. 

Okay, we all know the story of a judge that told an alleged victim that she could only describe what allegedly happened to her and not tell the jury that she was “raped.” To me, this isn’t a big deal.  Judges apply rules of evidence and normally regulate what can and cannot be said to a jury.  After all, if they couldn’t do that, any witness or party could introduce anything, no matter how irrelevant or unreliable.  Heck, a prosecutor could even base his entire case on hearsay, astrology, and personal attacks. A judge’s discretion, of course, can be abused, and most lawyers know how to obtain rulings in advance and deal with rulings they don’t like.  This is what we get paid to do.

I don’t think that anyone seriously doubts this proposition.  Ah, but when talking to the “little people” (as some prosecutors call them when they think nobody is listening) a whole different story emerges.

Typically, when a party wants to prevent the use of a certain term by a witness, a party moves before trial for such an order.  This is normal practice.  Heck, the resulting order can often be appealed. 

Now here comes the good part:

The alleged “victim” was so incensed by not being able to say “rape” to the jury that she sued.  In Federal Court. 

“For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was raped when she testifies in a trial about rape,” wrote U.S. District Judge Richard G. Kopf. 
...
Wendy J. Murphy [Durham in Wonderland describes her here and Liestoppers describers her here], an adjunct professor at the New England School of Law in Boston, is representing Bowen. She said the practice is “absolutely” unconstitutional.

These quotes from Judge Kopf are somewhat out of context.  In fact, Judge Kopf wrote:

There is something profoundly disturbing about the notion that a federal judge has the power to tell a state judge how to do his job, particularly when that state judge is presumably trying to do nothing more than protect the rights of a citizen who may have been wrongly accused of rape.  In this regard, I have serious concerns about forcing Judge Cheuvront to defend himself while also presiding over the state criminal case. Thus, and until I am satisfied that progression of this case is appropriate, I shall not require the judge to answer or otherwise respond to the plaintiff’s complaint until I order otherwise.

More importantly, I have serious reservations about whether this action was commenced for the improper purpose of forcing Judge Cheuvront to recuse himself from presiding over the state criminal matter or for the improper purpose of generating pretrial publicity about the plaintiff and the criminal case.  Still further, I seriously doubt whether the plaintiff’s suit has any legal basis whatsoever. For example, and not by way of limitation, I cannot find any precedent for a suit of this kind and the plaintiff could avoid any “injury” whatsoever by simply electing not to testify or, if subpoenaed, by invoking her Fifth Amendment privilege.

As a result, I shall order the plaintiff and her counsel to show cause why I should not conclude that (a) the complaint was filed for an improper purpose and (b) the claims and legal contentions set forth in the complaint are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

The footnote that seems to be taken out of context goes like this:

This also strikes me as insufferably arrogant and, unfortunately, all too typical of the thinking of those who view the federal courthouse as the proper forum for the advancement of their particular brand of gender politics. That said, there is also something profoundly disturbing about a judge telling a citizen that she cannot say she was raped when testifying as a victim in a criminal case, particularly when the victim is presumably trying to do nothing more than describe what happened to her...

Strangely, the best authority Judge Kopf can muster is this:

See Asne Seierstad, The Bookseller of Kabul (Back Bay Books 2004).

 

Judge, I realize you are trying to throw these people a bone, but just because Afghanistan is a cruel and sexist place doesn’t mean that there is anything wrong with a witness being told to not use charged words.

But the bigger question is why is anyone quoting an adjunct professor in the first place?  Adjuncts don’t count.  Maybe if she had a real job, she could list that.   But, really, being an adjunct professor at a law school does not make you special.  Or maybe I should start telling people that a judged a moot court competition the other day.

Secondly, the best argument that Ms. Murphy can offer is that a judge exercising his discretion to limit testimony is “absolutely” unconstitutional.  I realize that Ms. Murphy is talking to the little people, but can’t she do better than that?  Can’t she tell us what right a witness has to say whatever they want to the jury?  Is this some kind of First Amendment right that has never been recognized.

Do the real professors teach people at New England School of Law to make these kinds of arguments?

[Note: New England School of Law is not Western New England College School of Law.]

Oh, but Ms. Murphy goes further:

“There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.”

What?  A judge can’t order a witness to stop testifying or not testify as to a certain matter?  Isn’t this what FRE 403 and it state-law analogues is all about?  Hell, isn’t it what *every* rule of evidence is about.  Does Ms. Murphy really think that no objection to any evidence can be made and judges are powerless to enforce their rulings?  Is she really saying that judges don’t have inherent power to regulate what goes on in their court?

Anyway, predictably:

Bowen’s case gained national notoriety and drew the attention of free-speech proponents after she filed a lawsuit challenging the judge’s actions as a First Amendment violation. A federal appeals court dismissed the suit, but Bowen’s attorney plans to petition the U.S. Supreme Court

Of course, the irony of it is that the logical conclusion of Ms. Murphy’s rule would be that judges simply could not rule on motions in limine or protective orders, but would have to order mistrials grand judgments of acquittal after improper evidence comes in.  Is this really what Ms. Murphy wants?

Anyway, let's find out why the Eighth Circuit ruled the way it did in a suit against a state judge for an evidentiary ruling.  This should be easy.

A third trial was scheduled but before it proceeded, Ms. Bowen filed this action in the federal district court seeking remedies based upon purported violations of her constitutional rights.

The record clearly establishes that the state trial judge was never served summons in this matter. As a result, neither the district court nor this court has personal jurisdiction over the defendant/appellee. More importantly, though, the state criminal prosecution was dismissed on January 4, 2008, mooting all issues initially presented to the federal court.

Not that if the state judge was served, it would matter.

Although the article explains how the defense generally requests such ruling prior to trial, it then says “Prosecutors may object, but rarely do they have the time and resources to stop a trial midstream to appeal, she said.”  This is strange.  Bowen doesn’t seem to understand that these rulings came before the trial.  Maybe she really is arguing that motions in limine might not be immediately appealable in some states by the government.  Or maybe she is just talking down to the little people. 

The Kansas City Star says this

Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.

Trend?  What tend?  Oh, the kind of trend without any statistical data, but rather a few antidotal stories?  Were motions in limine not granted earlier?

Now, despite the hysterics of an adjunct professor at New England School of Law, at least one prosecutor is a tad introspective.

Jackson County Prosecutor Jim Kanatzar said juries are smart enough to understand that in the adversarial system of justice, the state is going to take one position and the defense is going to take another.

Now, I disagree with Kanatzar, but at least he understands what the real issue is: that the parties are taking different positions and they will introduce whatever evidence they can to advance such a position.  He seem to think that because people use the term “rape” all the time it loses its meaning, and “If someone says something that one side feels is prejudicial, it can be addressed in cross-examination.”  I don’t think that is really adequate, but I see where he is coming from, and I think he has actually put some thought into his position.

Comments

[Dave!]

Okay, it definitely seems Murphy could use a refresher in evidence... although, I'd argue that for the sake of judicial economy, I'd want the victim to be able to use the word "rape". Sure beats making them say each time "when the defendant used physical force and the threat of injury to engage in an act of non-consensual intercourse with me". Talk about silly. She's alleging the guy *raped* her... only lawyers would think could be overly prejudicial to let her use the word... whatever you think about juries, they aren't *that* stupid. If they are, we've got much bigger problems.

Second, have a bit of a chip about adjuncts??!? Murphy's qualification aside, some of the best professors I had in law school were adjuncts. They often brought some idea of the *reality* of legal practice into the classroom--as opposed to many tenure track profs who worked in some firm for three years and never made it past associate. More importantly, many of them were actually good *teachers*, which has little or nothing to do with tenure, apparently. Call Murphy a twit all you want--but lighten up on the adjuncts. Sheesh. Maybe law professors need some post-docs to beat on. Oh, wait, that's right... most law professors don't even have PhD's themselves...

[S. COTUS]

Well, “judicial economy” is really a matter of judicial discretion. For example, if a witness wants to use some abbreviation, and the judge thinks it is confusing, I think he is within his limits to say don’t use the abbreviation.

But, I think there is something substantively wrong with the way you phrased your comment.

“She's alleging the guy *raped* her... only lawyers would think could be overly prejudicial to let her use the word... whatever you think about juries, they aren't *that* stupid. If they are, we've got much bigger problems.”

Well, sort of. The state is alleging that someone sexually assaulted her. I think the relevant statute is 28-320 – available at http://uniweb.legislature.ne.gov/LegalDocs/view.php?page=s2803020000

This is a double-edged sword. If the only testimony is so conclusory, it would likely not survive a sufficiency challenge. On the other hand, the jury is the judge of the individual facts, and it does not judge what constitutes “sexual assault.” That is for the legislature and judge to determine, so they should not be faced having to decide whether a witness is “credible” when the witness is essentially rendering a legal conclusion.

I don’t have a problem with adjuncts per se. They are a good supplement to other teachers, but they shouldn’t be a replacement for them. Indeed, I don’t think that a law student should take more than 2 classes from adjuncts.

My problem with her, is that she is using this position as a claim to authority. She is trying to make it look like she actually as a tenure-track position where she is researching these issues. She is not. Her entire livelihood, in fact, is based on delivering these pithy commentaries, and filing suits which appear to be for no other purpose than to generate publicity. Unfortunately, she is doing this on the backs of various “victims” who probably don’t even know they are being used by her.

[Dave!]

Actually, we agree about the judges role... I'm just saying, if it were me, rape would be much easier (and I don't believe any less biased).

As for adjucnts, I'd love to see the school where you can graduate without taking more than two courses from an adjunct. I doubt you can do that at even Harvard or Yale. Keep in mind, just because you are calling someone a "Lecturer" or an "Affiliate" doesn't mean they aren't an adjunct. Whatever your politics are, Barak Obama was an adjunct. Calling him a "Senior Lecturer" didn't make it any less so.