Sunday, September 09, 2007

Judge In Sex Assault Case
Sued By Alleged Victim

by Clarence Mabin - September 8th, 2007 - Lincoln Journal Star

In the latest legal twist in the sexual assault prosecution of a Lincoln man, the woman at the center of the case sued the trial judge this week because he barred “rape” and other words from the courtroom.

Tory Bowen, 24, said in the complaint filed in federal court that Lancaster County District Judge Jeffre Cheuvront violated her First Amendment right to free speech by barring the words “rape,” “victim,” “assailant,” “sexual assault kit” and “sexual assault nurse examiner” from the trial of Pamir Safi.

She is seeking a declaration from a federal judge that Cheuvront’s word ban was contrary to the U.S. Constitution.

This is not likely to prevail for many reasons, but it does point out the corruption of our court system. Judges play games, closely resembling farce, with the idea that courts care about truth or justice. The primary role of a judge today is to suppress evidence in trials. The idea that juries can make informed decisions when most of the evidence is hidden and surpressed is bizarre. However that is the actual situation we face. The argument suppression of evidence is needed to assure a fair trial is defended in the article.

. . . . a skeptical Richard Collin Mangrum, who teaches at Creighton University Law School in Omaha, characterized the complaint as odd and said he doubted its chances for success before a federal judge.

“It’s unusual for a lot of reasons — I don’t know where to begin,” he said.

Judges, he said, have to guard defendants’ right to a fair trial. That often means keeping out unduly prejudicial testimony or evidence, he said.

Unduly prejudicial evidence? A more honest assessment is that suppression of evidence maximizes lawyer fees and court power by protecting criminals from justice. The modern concept has become that anything that might actually support conviction is at serious risk of being excluded. I love the way the title of the article calls the victim an "alleged" victim. The word allegation is used about a defendant because someone other than the defendant is accusing them. Though you might find some word to use if you don't think the victim has been harmed, it is not an allegation about the victim. It is a CLAIM. Using the word allegation about a victim simply shows the incredible bias in favor of criminals in our court system.


At 11:27 PM , Blogger lrbinfrisco said...

Whatever happened to innocent until proven guilty? Isn't our legal system supposed to be based upon this principle. Is your argument that accused should be presumed guilty until proven innocent?

I wonder what Thomas Sowell would say on this subject. I remember reading several articles by him over the past few months defending the presumption of innocence, especially in a rape case with no forensic evidence to show a rape has occured.

There was one tiny little case that has been in the news you might have caught wind of involving one Michael Byron NiFong and three former lacrosse players at Duke. Coincidentally one of the major media personalities speaking out against the lacrosse players and insisting on their guilt even after NiFong was convicted of criminal contempt of court for lying to withold evidence, was Wendy Murphy. The same Wendy Murphy who is representing Tory Bowen in her law suit.

It's all too easy to fall for the ploy to rush to judgement based on a narrative and not the facts. Ms Bowen and Ms Murphy have constructed an elaborate hoax to do just that. It plays upon your emotions, but uses smoke, mirrors and misdirection to obscure the real facts. Like for instance that Ms Bowen voluntarily consumed mind altering substances the night in quesiton. That her friends testified that she appeared to leave voluntarily with the accused and did not appear to be overly impaired. That Ms Bowen appears to have stayed in bed with the accused for about 1 hour after she allegedly regained conciousness in the middle of intercourse and asked him to stop. She testified that he imediately stopped BTW. That Ms Bowen had the accused drive her to her home.

I'm pretty sure that the accused is a guy who hangs around bars hoping to get a girl with alcohol lowered inhibitions to go home and sleep with him. I find that morally reprehensible, but don't think that it's criminal. I also find a young woman who goes to a bar and drinks, has sex afterwards, and then decides sex was rape because she was alcohol impaired to be morally reprehensible. Where is the personal accountability?

At 6:40 AM , Blogger Dean Stephens said...

It is not rational to assume that supressing evidence harms the innocent which is what you clearly contend. Setting that up as a straw man to attack does not mean that I believe that at all. If you have an opinion express it. Don't impute to me opnions I do not share and then attack them. In the case of Nifong, it was he, practiced in the art of suppressing evidence, who suppressed evidence to try and convict the innocent. Not a nice goal. Suppressing evidence is usually the goal of denying justice to someone and usually done to protect the guilty, though it is not always the goal. If you have specific problems with this particular case so be it. However I do not see how the facts in defense of the acccused are aided by the Judge keeping the accuser from saying what she believes to be truth. If juries are so stupid they cannot be trusted to know the truth as everyone sees it and sort it out, why are they the process by which we determine guilt? Do you not trust the jury system? I agree that claiming rape can be abused. I do not support that. In fact one of my other serious problems with our corrupt court system is that there is no practical method to punish someone for a false charge. An example is the accuser in the Duke Lacrosse case. It is possible that the accuser in this case falls in the same class. My question to you is as follows; I made a point about the invalidity of getting to the truth by allowing Judges to suppress evidence. You attacked me by pretending I defended this accuser, something I have not done. How is that rational debate?

At 9:32 PM , Blogger lrbinfrisco said...

Ok, 1st let me apologize for my tone and wording of my earlier post which was more hostile than I attended. Now on to your response.

You contend that it is not rational to assume that supressing evidence hars the innocent. I can't see how you can possibly back that statement up. The Duke Lacrosse case is a prime example. The only evidence the DA ever had that a crime was commited was the testimony of the accusing witness. Now if the DA with held evidence that showed her not to be credible and only showed evidence that showed her to be credible that would certainly hurt the innocent. In this case, if a jury found her credible they could convict the innocent young men. Even more important and more likely was the effect that denying the defense this information would weaken the defenses position to have the case dismissed for lack of credible evidence. This was an extremely costly affair fighting a malicious prosecution and it nearly bankrupted some of the families. It makes no sense to say that only providing those facts that are harmful to the defense does not hurt the defense. I guess you are entitled to your opinion, but it certainly does seem to be one far removed from the mainstream of society.

Now on to the Tory Bowen case. You make an assumption that is not backed by factual evidence that Ms Bowen's testimony of rape would be considered a fact. It cannot be considered a fact unless other parts of her testimony are false. Ms Bowen claims not to know if consent was given because she has no memory of the time when consent would have been given or when intercourse would have commensed without consent. Ms Bowen concludes from evidence that she was raped, but it's not factual testimony it's a conclusion built upon her factual testimony. As such it is expressly prohibited by NE law. This isn't a judicial ruling, but is clear language written by the NE legislature. The judge is only making the decision that this is a conclusion. That is his job as trier of fact. Without a judge performing this, we would have nothing more than a lying contest similar to political races where wild and conflicting claims are made by each side. The winner is decided more on PR than on facts. Our system limits testimony to facts and prohibits opinions except from expert witnesses and then in very limited areas.

Our founding father worried about out of control government falsely imprisioning innocent men. The state has enormous power to bring charges and to prosectue. To limit that power somewhat our trial slant things in favor of the defendant. Constituional rights have to be obeyed like right not to inciminate yourself, right to an attorney, right to be free of unreasonable searches, right to a speedy trial, right to a trial by jury, etc. Many times those rights are violated like in the Duke Lacrosse case, however most times it's not caught like in the Duke Lacrosse case.

You asked if I believe in the jury system. I believe it is the best system that I know of, but it's far from perfect. However when all of the checks in balances in our legal system are imployed as written in the constitution and laws, then I think it works pretty well. However, when those checks and balanced are ignored, it's fairly easy to abuse.

Whether Ms Bowen uses the word rape or not should have no effect on the facts. It is unreasonable to assume that there are not other ways to convey the facts without using the word rape. In fact the NE legislature did not use that word when writing the law that the accused is being charged of violating. Any college educated person should easily be able to find alternative words and phrases to use in a dictionary or thesaurus. I certainly can do this with great ease. I find it hard to believe that the University of NE has such low standards that Ms Bowen can't do so as well. Certainly you show such advanced use of vocabulary that you should not have a problem either.

Now what we don't have is a full disclosure of what transpired in the hearings surrounding the judge making his decision. We don't have the trial transcripts. And the defense and judge aren't giving out statements, which is usually very appropriate in an ongoing case. The DA seems to be getting around legal ethics by having Ms Bowen deliver a one sided story to the press who are eating it up, just as they did the accusations on the Duke Lacrosse boys. I find it hard to believe that the accused will have a shot of having a jury who don't already hold some opinions on this trial. Opinions that are based on rumors and innuendo as much as fact.

Fortunately a federal judge has so far denied the request to overturn this ruling and is considering imposing santions on Ms Bowen and her lawyer Ms Murphy. While the word rape may not be excluded everyday, many other words and phrases are. This is a crucial and important aspect to the fairness of our judicial system. Don't get me wrong, I believe that judges make wrong decisions, that they legislate from the bench, and make stretches beyond reason on clear wording or just ignore it altogether. However this instance is not even close to being one of those cases. This judge has erred in not throwing this case out for lack of credible evidence that a crime was commited though. That's what everyone should be talking about.

At 12:27 AM , Blogger Dean Stephens said...

I have difficulty following your argument. I contend that it should never be a part of the judicial process to suppress evidence and that it harms the innocent. You then talk about the Duke Lacrosse case and suggest that Nifong could have convicted the men by suppressing some evidence. Didn't you just prove my argument? As to the Tory Bowen case you once again start claiming I made an assumption about blah blah blah. Excuse me but I made assumptions only about the fact that Judges suppress evidence and that I oppose that. Everything else is you reading between the lines and inventing your own reasons to disagree with me. Let me make it simple. I believe the process by which Judges selectively exclude evidence is designed to rig decisions to free the guilty. Freeing the guilty drives up lawyer fees since the guilty go out and commit more crimes for which they need lawyers. As for your last paragraph, I suggest that imposing sanctions on Ms. Bowen and her lawyer Ms. Murphy is for the exact same reason. Judges don't like it when anyone interferes with their ability to do as they please. And I do not disagree with the premise that a large number of cases are taken to trial where no rational case can be made. I offer the Trial where Judge Roy Pearson sued for $65 million for loss of his pants and the McMartin Child Abuse farce as examples. Maybe the rape of Bowen is such a case. I am not a expert on the details of the case and will be glad to acknowledge that. Want to make that the premise of an article? Write your own blog and stop attacking mine for articles on comletely different issues!

At 8:44 PM , Blogger lrbinfrisco said...

OK I see that I misunderstood your 1st response regarding hiding of evidence. I agree that it does hurt the innocent.

Now I did make an assumption of defining fact and evidence as interchangeable. How do you define evidence in the context of testimony in criminal court? And who do you feel should decide if something is evidence or not?

Now despite impressions you may have to the contrary, I do agree in principle with a great deal of what you say, but obviously there are sticking points where I do not. I really have no wish to attack you. I do feel that blogs are essential to keeping the media in check. I try and participate in the questioning of blogs of topics that I have interest in. I find a learn a great deal from this and I try and attempt to correct some erroneous perceptions that I feel the media has perpetuated. Of course, sometimes, I do find that my views are the ones that are erroneous.

I am not entirely trustful of judges, but I do see them as a necessary part of our judicial system. I am in favor of more checks on their power. In this case though I disagree with the interpretation that the judge is necessarily overstepping his duties. I believe that not all evidence is material to a case and that much would serve no purpose but to play upon the prejudices of the jurors. However, I do realize that judges often exclude testimony for what are not valid reasons. I had a lady who worked for me whose exhusband was killed and a judge ordered a retrial of the punishment phase of the trial because an expert witness testified that the convicted murderer would be very likely to be a repeat offender given that he was an illegal immigrant, spoke no
English, and had no marketable skills. This was considered prejudicial to the defense, although staticical studies overwhelmingly backed up the experts testimony. The ex was killed to steal his car which was a stickshift and the murderer only was able to drive it about 100 yards before abadoning it.

At 8:07 AM , Blogger Dean Stephens said...

When evidence is presented that is not relevant, or false, there are reasonable processes to adjust for that in any system. Punishing those who do this would be reasonable. Our system rejects all of the reasonable processes. To insist (as our courts do) that supressing the evidence is only subject to a latter ruling by appeals judges (who also embrace the concept) leads to stripping victims and of their rights and society of justice. Many murderers walk free in our system. As a result many murders are committed in our society. The judicial tyrants are comlicit in the victims deaths. Justice demands that the clearly guilty not be freed and their victims not be stripped of justice because of innocent and unintentional acts by police officers and crime lab technicians after the fact. Our judges don't care about justice. They care about judicial perogatives and guilt is suppressed along with evidence by the arrogant judiciary caring more for the perfect adherence to their rules than about the impact on society. You waffle about whether judges can be trusted. I don't. The system is broken and the judges are corrupt. Away from court some of them are decent people. Their actions are evil and contemptible. Jesus recognizes good people can do bad things. In our court system we have many good people doing evil. It has to be stopped.


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