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What we learned from Day 2 of the Bauer Hearing

Shawn Holley isn’t defending Bauer. She’s punishing his accuser.

MLB: Los Angeles Dodgers at San Diego Padres Orlando Ramirez-USA TODAY Sports

Content warning: This article contains descriptions of sexual violence.

Day two of the hearing in the restraining order case against Trevor Bauer began in the same way Day One ended: with additional direct examination of Bauer’s accuser. According to the livestream of the hearing provided by The Sun, that direct examination was largely consistent with the petitioner’s initial filings and declaration and didn’t yield much new information, besides additional text messages which established that the ones Bauer released had been selected and edited out of larger conversations.

The petitioner also provided answers to why she delayed in filing the petition, testifying that Bauer had sent her flurries of text and phone messages in the days following the second alleged assault, and the impact those alleged assaults and Bauer’s continued contact had on her life.

After asking why she waited to get a restraining order — to which the woman essentially replied that she wasn’t sure if Bauer would be arrested and wanted to seek protection for herself — her lawyer asked what had changed in her life.

“I lost my job, I lost my place of residence, I had to take a leave from my other job,” the accuser replied. “It’s still hard to fall asleep. ... I’ve lost over 10 pounds. And just the sadness I had to live every day, and the fear I have of Trevor Bauer, it’s brutal.”

And, as Fox reported:

In her concluding testimony on direct examination, Bauer’s accuser was questioned by her lawyer, Lisa Helfend Meyer, about why she wanted the restraining order extended.

“I am fearful of what he can do to me,” she said, adding that she doesn’t want to see his number on her phone or allow any chance for him to come to San Diego to see her.

She said she waited more than a month to seek a restraining order because the Pasadena police detectives investigating her case told her Bauer would likely be arrested and that she would get automatic protection.

Direct examination also included recordings and text messages in which Bauer admitted to punching the petitioner whilst she was unconscious, although he said the punches were in the buttocks only.

The more important part of the hearing was when Bauer’s attorney Shawn Holley began cross-examining the Petitioner.

Holley began by demanding the accuser define a lie of omission, then proceeded to point out Instagram and text message threads the accuser failed to include in her request for a temporary restraining order June 28.

Holley then spent most of her cross-examination on a couple of topics which Judge Dianne Gould-Saltman ruled admissible: Bauer’s previous Sports Illustrated article on dating rules, and the petitioner’s past sexual history, including relationships with San Diego Padres players Fernando Tatis Jr. and Mike Clevinger.

Now, the media ate this up, with the Los Angeles Times reporting that “Trevor Bauer’s accuser bec[ame] flustered by [Holley’s] aggressive cross-examination.” But I think that’s not what happened here.

To understand how Holley’s cross-examination of the petitioner went, we have to first understand a little about the practice itself. Cross-examination is a difficult skill to learn, and not at all what you see on television. Done well, it can win your client’s case; done badly, and it will not only lose your client’s case but land you in hot water with the judge. The key to an effective cross-examination is twofold: control the witness, and undermine the witness’ credibility.

Cross-examining a witness can be very difficult, even for lawyers who have spent a lot of time in court. The purpose of cross-examination is to create doubt about the truthfulness of the witness’s testimony, especially as it applies to the incidents that are at issue in the case. Cross-examination questions are usually the opposite of direct examination questions. In a direct examination, you have to ask the witness open-ended questions that allow them to fully explain their answer. A cross- examination question should be very pointed and requires only a one-word answer, preferably “yes” or “no.”

The reason you generally want to stick to yes or no questions is that open-ended cross-examination inquiries are recipes for disaster.

The following is a courtroom cross-examination exchange between a defense attorney and a farmer with a bodily injury claim. It came from a Houston, Texas insurance agent.

Q: “At the scene of the accident, did you tell the constable you had never felt better in your life?”

A: “That’s right.”

Q: “Well, then, how is it that you are now claiming you were seriously injured when my client’s auto hit your wagon?”

A: “When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say I’ve never felt better in my life.”

There are, of course, exceptions; experienced trial lawyers will occasionally deviate from the general rule against open-ended questions on cross-examination where necessary, and I myself have asked an open-ended cross-question or two on occasion. That said, it’s a general rule for a reason, and there are more failures than successes. It should never be a theme for your cross-examination.

As I’ve written before, Shawn Holley is an experienced litigator and one of the finest attorneys in the country. As many cross-examinations as I’ve done, she’s done more. She knows how to cross-examine a witness, and she knows how to do it well. This was not a good cross-examination from a legal perspective. To explain why, let’s delve into a couple of exchanges, the first focusing on the Sports Illustrated article in which Bauer disclosed his “rules of dating.”

“He did not tell me those three rules at the time of these messages,” [Petitioner] said.

Attorney Holley asked what he said in that article about rules of dating - he’s emotionally unavailable, no social media, and he will sleep with other people.

[Petitioner refused] to say she knew he was emotionally unavailable, continuing to say it was just a sarcastic joke and she wanted to find out if that’s what he was really like.

She insisted that going to his house - at 9.30pm - was their first date.

“You believed that, notwithstanding, what you read in Sports Illustrated?” Holley asked.

“Yes. I was going to wait to see if he brought up his three rules of dating on our first date,” [Petitioner] said.

Holley is making a legal argument here: that the domestic violence statute which creates a right to a restraining order in California doesn’t apply because the relationship between Bauer and the Petitioner followed rules set out by the Sports Illustrated article and therefore wasn’t a romantic or sexual relationship but rather a series of discrete encounters. That argument, however, requires the court to find that the Sports Illustrated piece was legally binding on both Bauer and the petitioner, which is extremely unlikely. It also led to Holley essentially arguing over whether or not the petitioner had emotional involvement with Bauer:

Attorney Holley is currently trying to establish that there was no emotional involvement, and there was no dating relationship between [Petitioner] and Mr Bauer.

“So you understand that rule remained in effect the entire time you knew him? Because he never took it back.”

“No,” [Petitioner] said.

“You just acknowledge that he never told you that rule was no longer in effect.”

But [Petitioner] says she felt he broke that rule because he was emotionally vulnerable.

“I’m asking you what was going on in your head, because you said that you believed that this rule that he set forth in a publication, that he spoke about with you, was no longer applicable based on your experience with him?”

And later:

“Why didn’t you go and sleep in the guest room?” Holley asked.

“I didn’t want to think about what just happened, I wanted it to go back to the way it was before we had sex,” [Petitioner] said.

“You felt an emotional connection with him.” she asked, to which [Petitioner] said “Yes.”

“You have no idea if he felt an emotional connection with you?” Holley said, and [Petitioner] agreed that she didn’t.

Here, we see why open-ended questions make for a terrible cross-examination. In a good cross-examination, the fact that the petitioner did not leave the room could be used in an attempt to impeach her credibility. Instead, Holley opened the door for the petitioner to not only provide a valid reason but also establish a dating relationship existed and make Holley look foolish for bringing up the Sports Illustrated piece. In short, Holley’s cross-examination here made the argument that it was reasonable for Bauer to believe that his rules in a magazine article are legally binding, which is a terrible argument.

But perhaps more damaging to Bauer was the exchange between Holley and the Petitioner regarding her prior sexual relationships with San Diego Padres players Fernando Tatis Jr. and Mike Clevinger. Holley insisted that “I want you to understand I’m not asking these questions to slut-shame you,” but instead asked questions arguing that Petitioner’s prior relationships, combined with text messages, supported the theory that the Petitioner was a Padres fan attempting to damage the Dodgers by attacking Bauer.

[Petitioner] says she’s a San Diego Padres fan.

She said that they were referencing the rivalry between Padres and Dodgers in the messages with a male friend.

The judge asks “how is this sarcastic?”

[Petitioner] said it was because she said she had her hooks in, and “that’s how I roll.”

She said that she was putting on a front, and says there are two sides to her.

* * *

Holley says [Petitioner] had a relationship with Padres shortstop Fernando Tatis Jr.

The attorney added that [Petitioner] got fired from the [Padres’ cheerleading squad] because it was discovered she was having a relationship with him.

[Petitioner] began sobbing as she said, “I don’t know how me getting fired and going through that part of my history is relevant.”

* * *

They are now showing the court a post with Fernando holding a hand over his eye mocking Trevor’s one-eyed pitches.

This is something that [Petitioner] joked about. She also used dollar emojis. “There was no ill intent by using that emoji,” she said.

The idea that the Petitioner would concoct an elaborate story to damage the Dodgers by creating a false narrative about Trevor Bauer to benefit the Padres is incredible. Holley also could use the testimony to argue that the Petitioner consented to sex with Bauer because she consented to sex with Clevinger and Tatis.

Surprisingly, Holley didn’t seem to realize the flip side of the argument either: if her case is predicated on the idea that the Petitioner is using Bauer to obtain fame and fortune, that she didn’t levy similar allegations against Tatis or Clevinger buttresses her claims against Bauer. Further, it opens the door for the Petitioner’s lawyers to ask Bauer about the restraining order case in Ohio that featured similar facts when he is called as a witness. For those reasons, this exchange may actually have been seriously damaging to Bauer.

Holley also asked several questions about text messages that the Petitioner “just wanted d***” from Bauer (right after talking about how she wasn’t slut-shaming her). Holley also had this exchange with the Petitioner:

Holley says Bauer stopped when he put his fingers down her throat, and she objected, waving her hands.

“You were capable of telling Trevor something that you didn’t want to happen?” Holley asked, which [Petitioner] said “yes” to.

“You say you were unconscious and when you came to he was having anal sex with you?” the attorney asked.

“Yes,” she said, before clarifying that no lubricant was used. Holley said that [Petitioner] told Bauer to stop, so he did.

Holley asked if [Petitioner] had her period during that time, to which she said no.

This colloquy is devastating for Bauer. Holley is attempting to show the court that the Petitioner could have said no to Bauer’s actions. However, the Petitioner’s testimony that she did so after Bauer already started putting his fingers down her throat, and further did so via a movement she could not make whilst unconscious, buttresses the Petitioner’s version of events. Further, reminding the judge that Bauer stopped when Petitioner woke up is awfully close to a judicial admission of forced sex whilst the Petitioner was unconscious, which is a crime. At the very least, it’s not something you want to build your defense around.

That’s not to say that Holley’s cross-examination was entirely a failure. She did get the petitioner to admit to having lied in several text messages, and further to admit that she did not include everything in her initial declaration. That said, nothing in her testimony on cross-examination seriously damaged her credibility, and Holley was unable to demonstrate any real gaps in her story. At the same time, a defense that Bauer only punched the Petitioner in her buttocks, or stopped anal sex once the petitioner woke up, is a de facto admission to a criminal offense. You cannot consent to sex when unconscious.

In the afternoon session, the Petitioner called as a witness Kelly Valencia, a nurse who examined the Petitioner after the alleged assaults. Valencia’s testimony largely corroborated the petitioner’s allegations. Jon Fetterolf, Bauer’s co-agent who is also representing Bauer in this proceeding, conducted the cross-examination of Valencia; his questions were directed at whether or not the Petitioner could have caused or worsened her own injuries.

Jon Fetterolf from Bauer’s counsel asked Kelly Valencia about whether [Petitioner] takes medications.

He asked: “If a patient were taking drugs or medication that could [exacerbate] bruising?”

Valencia responded: “Correct.”

And [Petitioner’s]’s report listed Tylenol (headache and pain relief), and Lexipro (anti-anxiety), Gabapentin (anticonvulsant and nerve pain medication), and Trazodone (an antidepressant).

Valencia said she wasn’t aware of [Petitioner] taking ibuprofen, but she confirmed the drug could make bruising worse.

Fetterolf focusing on ibuprofen is an odd choice, for a couple of reasons. Ibuprofen is an over-the-counter pain reliever often sold under the brand name “Advil”; most people have taken ibuprofen in their lives. Fetterolf asking about whether a pain reliever could have worsened the bruising necessarily concedes that pain relief was necessary, and that is a strange angle where you’re arguing that injuries aren’t as bad as they appear. Second, we’ve spoken before about the eggshell skull rule in civil law, which says that a person is not less liable for an injury because its effects are worsened by an underlying medical condition.

To be clear, Bauer’s defense here may well work insofar as this hearing is concerned, if Holley and Fetterolf are able to persuade the judge that Bauer’s conduct will not be repeated because his conduct is limited to instances of sexual encounters - and to that end, they have done a pretty good job. As such, I came away from today thinking that Holley and Fetterolf’s strategy is this:

  1. Argue that the acts in question are confined to sexual encounters and that there was and is no continuing relationship; as such, no restraining order is necessary.
  2. Use that victory, even though it is based on a limited point, to argue in the media that Bauer is vindicated and that the Petitioner must have been lying because they won the hearing.
  3. At the same time, show potential other victims what they face by challenging Bauer, using cross-examinations that focus on past sexual histories that grab media attention.
  4. If Bauer does end up suspended, use the victory in the order of protection case and the media narrative to push him as the victim.

This strategy does have a couple of flaws, however, even if it works (and there’s no guarantee it will). First, were the Petitioner to file a subsequent civil lawsuit against Bauer, Holley may well have strengthened that case today instead of weakening it. Civil liability is not lessened by losing a domestic violence restraining order. That said, civil cases for money damages take far longer than these cases - years or more - and Holley is likely gambling that the Petitioner won’t file a lawsuit because it can be used to support the “money grab” theory they’re pushing in the press. Second, nothing Holley did today will dissuade a district attorney from filing charges against Bauer, which leads me to believe that Holley is expecting charges to be filed and held back her best arguments and cross-examinations for a criminal proceeding.

But third, Holley and Fetterolf are gambling that you, the readers, will read the headline and not the story. The real story from Day 2 of the Trevor Bauer hearing is that Trevor Bauer punched an unconscious woman, in his own words. He had anal sex with an unconscious woman, by his own admission and his lawyer’s own admission. You can’t legally give consent for those acts. This hearing was never about providing any compensation or punishment for those things; the only thing this hearing is about is whether he will be ordered by a court to stay away from the woman to whom he admits he did these things. The question is whether a man who punches an unconscious woman should ever pitch in Major League Baseball again. MLB has all it needs to make a decision now - and there are millions of reasons why Bauer wants the league to delay.

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.