'Fed-up' judge in Derrick Rose civil rape case gives lawyers gag order

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.

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.”

[From Rose’s lawyers’ filing:]

“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.”

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.

“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.

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.