Content warning: This article includes descriptions of sexual violence.
Monday afternoon, the hearing in the restraining order case filed against Trevor Bauer in California began in a familiar way: with the pitcher’s legal team, led by Shawn Holley, making yet another request for a continuance.
Trevor Bauer’s hearing on whether the woman who has accused him of sexual assault should be granted a restraining order for the next five years got underway Monday morning after a request by Bauer’s attorneys for a third continuance was denied.https://t.co/Se6TQepaCq— L.A. Times Sports (@latimessports) August 16, 2021
To understand why Judge Dianna Gould-Saltman properly denied the request, we have to understand why it was made.
Bauer’s request was based in large part on a request to review the petitioner’s medical records, including a filing which happened on Thursday that made a series of headline-grabbing assertions. Per the New York Post’s Jenna Lemoncelli:
Los Angeles Dodgers pitcher Trevor Bauer, in a new court filing, suggested the woman accusing him of sexual assault edited photos of herself following the incident to make her injuries appear worse than they were.
Bauer’s legal team also claimed that messages between the accuser and her counsel show she hoped Bauer would “offer me major cash then make me sign an nda” in a settlement, according to the court documents, which were obtained by TMZ.
On the surface, both of these appear to be damning to Bauer’s accuser's case. However, a closer inspection shows that they are, in a Shakespearean sense, sound and fury, signifying nothing.
The first argument necessarily concedes that Bauer caused the petitioner injuries; after all, the argument “she made her injuries look worse than they are” implies the existence of injuries in the first instance. I’ve already written at length about how consent is not a legal defense to the imposition of bodily harm; Bauer’s argument here is one of severity, not a denial that harm occurred.
In a pair of cases - People v. Barnett in 2019, and People v. Cross in 2008 - California courts of review explained what constitutes “great bodily harm” under California law. Notable is this passage from the California Supreme Court in Cross:
Proof that a victim’s bodily injury is “great” — that is, significant or substantial . . . is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury. . . . Thus, when victims of unlawful sexual conduct experience physical injury and accompanying pain beyond that “ordinarily experienced” . . . such additional, “gratuitous injury” will support a finding of great bodily injury . . . .
People v. Cross, 45 Cal.4th 58, 66 (Cal. 2008). That standard is probably met here, given the fact that the petitioner was treated at a hospital for head trauma.
So we turn to the second assertion by Bauer’s lawyers, that his accuser wants a cash payday and an NDA. As an initial matter, Bauer claiming to have legitimate communications between his accuser and her lawyers makes no sense, as such communications would be protected by attorney-client privilege. In fact, even if they are real, Bauer cannot use them in court, because attorney-client privilege always belongs to the client. In other words, even if the petitioner’s lawyer delivered them to Bauer’s counsel, they are inadmissible because the petitioner never waived privilege. It’s really unlikely that she would have voluntarily waived privilege for Bauer’s legal team, so the messages Bauer’s team is using either (1) aren’t between her and her lawyers, (2) aren’t legitimate, or (3) are inadmissible in court.
In any event, the underlying assertion - that his accuser wants a monetary settlement and a non-disclosure agreement - makes very little sense on its face. First, in most states (including California), a civil case for a restraining order includes no provision for money damages and actually bars litigants from agreeing to monetary payments in exchange for dismissal. That’s because by filing a petition for a restraining order, the plaintiff concedes they have “no adequate remedy at law,” which is legalese for “I don’t want money because it can’t make me whole.” Most states even prohibit TRO files from being sealed, meaning a non-disclosure agreement would be pretty pointless since the entire file would remain in the public record. In short, Bauer’s attorneys saying they will never agree to pay money or to execute a non-disclosure agreement in a TRO case is a little bit like Leonardo DiCaprio talking to a non-existent jury in Catch Me If You Can: it doesn’t really make sense in context.
Now, Bauer’s accuser can always file a separate lawsuit for money damages separate and apart from the TRO case. It’s also standard practice for many lawyers to issue a demand letter before filing suit, in hopes of avoiding the expense of litigation or to establish a baseline for later settlement discussions. As such, it’s possible that what Bauer’s team is referring to is settlement discussions between themselves and the petitioner’s lawyers in which they made a monetary settlement demand. However, even if that were true...it still wouldn’t be admissible. Every jurisdiction in the United States has a version of Federal Rule of Evidence 408, which states as follows:
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
In other words, settlement negotiations, including demands and offers, are not admissible in court. There are, of course, exceptions enumerated in (b), but note that the preamble in (a) specifically states that impeachment - that is, saying that your opponent is lying - is not a permissible purpose for the use of settlement discussions as evidence. (Saying that you want money to settle a case is not “bias or prejudice” within the meaning of Rule 408, because otherwise Rule 408 would be entirely meaningless.)
Once the hearing got underway, the Court made an important ruling. Recall that we reported back on July 30 that Bauer’s lawyers were arguing in court that consent was actually not relevant to the proceedings, with petitioner’s attorneys arguing that the hearing “may not be used to speculate as to whether [petitioner] provided her consent to any of the alleged conduct” and making this written argument in court filings:
Petitioner planned to introduce expert testimony as to consensual versus non-consensual sex. Specifically, [Petitioner] intends to introduce the testimony of Dr. Ellen Stein, “as a general expert on domestic violence” who will testify on “consensual versus non-consensual sex, and any other matters as raised in Petitioner’s DVRO application.” See Ex. A at p. 3. Respondent plans to file a motion to strike this expert testimony because it far exceeds the limited scope of this matter and is not a proper topic for expert testimony in any event.
The Court disagreed with Bauer’s position, ruling that Dr. Stein could, in fact, testify.
After those rulings were opening arguments from Holley and petitioner’s attorney, Lisa Helfend Meyer, followed by testimony from the petitioner. According to reports from inside the courtroom, the petitioner’s testimony was consistent with her sworn declaration.
In a dramatic moment on this first day of the hearing, the woman showed the judge how Bauer wrapped her hair around her neck to choke her unconscious in their first encounter. At the time, her hair extensions went nearly to her waist. She’s now cut it just below her shoulders.— Tisha Thompson (@TishaESPN) August 16, 2021
Bauer's accuser is explaining all the curious Instagram DMs she exchanged with Bauer ahead of their first encounter and between the two encounters. She's holding up well considering the subject matter.— Steve Henson (@SteveHenson) August 16, 2021
[The Petitioner] says that after the conversation about safe words, Bauer began to have sex with her and slapped her in the face, but “not super hard.”
She alleges that this was the point at which the encounter became nonconsensual.
“I felt it was consensual until he flipped me over onto my stomach. I knew what was coming. He took my hair and wrapped it around my neck. At that point I knew what to expect. I became unconscious.
“It was very tight. I couldn’t breathe. It kind of felt like I was going to gag, then I went unconscious.
“He flipped me back over onto my back when I was trying to regain consciousness. My body was limp. I couldn’t talk.”
* * *
She says she tried to tell herself it wasn’t “that big of a deal”, and that she would only be out for three or four seconds.
She then describes the alleged assault: “I didn’t know what was going on. He started punching my face. First on the left side of the jaw.
“Now he’s punching me. My eyes were opening and closing. He hit me on both cheek bones.
“I’d never been punched in the face ever. I went into shock. I felt like my soul left my body, I was terrified, I couldn’t speak. I couldn’t fight back.”
* * *
[The Petitioner] says she could not use her safe word, as the alleged attack was too quick and she “couldn’t get a word out.”
“It was like I wasn’t even a human being.”
She alleges that Bauer punched her in the jaw with a closed fist.
“It was so forceful it turned my head, it was so startling.
“He’s very strong, to the point where my lip split open and my gums turned black.”
She says she tasted blood in her mouth, and that “My body was on fire, my butt hurt, I had this horrible burning feeling right behind my ears.”
She passed out for a second time, and says she can’t remember when she woke up again.
A few days later, [petitioner] said, she had two black eyes, a swollen jaw and cheekbones, a split lip and bruising near her vagina, on her gums and on her head. Pictures of her face included in the court filing show bruising under her eyes and a scab on her lip as well as swelling on her jaw and cheekbone.
During the opening statement for Bauer, attorney Shawn Holley argued that when the accuser asked Bauer to stop at several points during their sexual activity, he stopped. “All he can go on is what she’s telling him,” Holley said. “When you get into a rough sex relationship, it’s a continuum.”
Bauer’s accuser testified that she was an alcoholic beginning at age 15 but that she has been sober since January 2020. She said she has been hospitalized for alcoholism “eight to 10 times.”
It may seem strange that Meyer asked her own client questions about alcohol use, but that’s actually a longstanding tactic for trial lawyers known as “reducing the sting.”
As litigators, we are told emphatically that a witness’ credibility may not be bolstered before it is attacked. But this is wrong in two regards – the limitation is actually as to bolstering with character for truthfulness, which may occur only after an averment of the witness having an untruthful character; and it is inapposite when the form of bolstering has the appearance of attacking one’s own witness. Abundant caselaw makes this point.
As explained by the First Circuit nearly thirty years ago, “[t]he prosecution, having called a witness, may then ‘take the wind out of the sails’ of the defense by questions eliciting possible bases for impeachment.” United States v. Frappier, 807 F.2d 257, 259 (1st Cir. 1986). This remains accepted as basic evidence law. See also, United States v. Flemmi, 402 F.3d 79, 88-89 (1st Cir. Mass. 2005); Evans v. State, 2014 Nev. Unpub. LEXIS 492, *12, 2014 WL 1270606 (Nev. 2014) (“Either party is permitted to preemptively impeach its own witness”).
The point is that no person is without some impeachable material or of flawless character. As such, an attorney will use a point, such as the petitioner’s past alcohol use, to place it in a more sympathetic light - humanizing your client - instead of allowing opposing counsel to use it for the purposes of undermining your client’s credibility. To put it another way, if Holley uncovered the petitioner’s alcohol use on cross-examination, the goal would be to make her look like an unstable person who could not be trusted. By bringing out this information on direct examination, Meyer is able to use it to buttress her case instead: that Bauer was preying on a vulnerable client.
The petitioner’s mental state also matters under something called the “eggshell skull rule.” Basically, the law says that if you harm another person, you are not less liable simply because the person you harmed was unusually susceptible, or because you had no way of knowing that the harm you inflicted would be greater than intended.
Bauer’s lawyer, Shawn Holley, said the woman’s text messages show she never complained about rough sex after the first experience and instead appeared to look forward to more before their second encounter in May, with both occurring at Bauer’s Pasadena home.
“I want more of this, I’ve never been more turned on,” the woman told Bauer, according to Holley, who said the woman only objected to Bauer putting his fingers down her throat.
But even that argument concedes that Bauer wanted to engage in conduct the petitioner did not want. Moreover, the first day of the hearing established that it is essentially uncontested that Bauer (a) punched the petitioner, (b) choked the petitioner, and (c) attempted to engage in sexual intercourse with the petitioner whilst she was unconscious - and that isn’t legal. In short, Holley’s argument isn’t that Bauer didn’t engage in the alleged conduct, but rather that she consented, and we already discussed the problems with that argument.
Bauer’s best argument is one Holley ironically didn’t emphasize at today’s hearing: the amount of time which passed between the second alleged assault and when the petitioner filed her request for an order of protection. If the court rules in Bauer’s favor, that will almost certainly be why.
The hearing is expected to last at least another day or two. Over the weekend, the Washington Post reported that at least one other woman filed a request for a restraining order against Bauer in Ohio for allegedly similar conduct. It remains to be seen whether the petitioner will attempt to have that proceeding admitted into evidence.
ANALYSIS: Former felony prosecutor @Tympanick20 discusses California's "habit evidence" rule in the context of the Trevor Bauer case. A timely read with the domestic violence TRO hearing scheduled for Monday. #sportslaw https://t.co/Ari9m6KxMZ— Daniel Wallach (@WALLACHLEGAL) August 15, 2021
Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.