Content warning: This article contains descriptions of sexual violence.
What was supposed to be the final day of the domestic violence restraining order case against disgraced Los Angeles Dodgers pitcher Trevor Bauer ended up being only the penultimate day. It began with Bauer’s attorney Shawn Holley continuing her cross-examination of the petitioner, Bauer’s accuser. Unlike on the second day of the hearing, when Holley engaged in bizarre and wide-ranging lines of questioning with limited effectiveness, Holley opened with a more disciplined cross-examination. Per The Sun:
[Petitioner] arrived to Trevor Bauer’s house in the late night of May 15/early morning of the following [day].
Attorney Holley said: “You testified you wanted to give him what he wanted. You wanted to say the things he wanted to hear.”
“Yes,” [Petitioner] responded.
The purpose of this exchange was to establish that Bauer had no way of reasonably knowing his accuser didn’t consent, by showing she wanted to please him and therefore didn’t object.
“You didn’t say don’t choke me with my hair, right?” Holley asked, to which [petitioner] said “right.”
“And you never said don’t choke me out,” Holley asked, to which [petitioner] once again agreed.
Holley says during the previous encounter she told him to stop on a few occasions and he did.
There are a couple of interesting points from this exchange. First, you can see Holley attempting to confine Petitioner to her narrative here. Second, though this helps Bauer’s case on the surface, remember that there are certain things to which a person cannot consent legally, and so this is less probative than it initially appears.
Holley’s cross-examination of the petitioner did make some inroads, however. For one thing, there was this exchange:
“You testified that you took that photo?” Holley asked [petitioner].
They are now looking at a picture [petitoner] took when Bauer was in the shower.
“At some point you were in the shower together because you said he held your hair in the shower?” Holley asked, to which [petitioner] said “yes”
* * *
[Petitioner] later texted about her f***d up jaw, and asked [her friend] on June 18 if she had the Dodgers game on her TV “Bauer’s pitching I have to watch that.”
Holley quizzes asking if she still wanted to watch him pitch. [Petitioner] sits quietly for a second, and shrugs “possibly.”
* * *
“I’m terrified that he again will invite me to his home,” [Petitioner] wrote, according to one text read in the hearing on Wednesday.
“Again, Mr Bauer had not spoken to or written to you in a month when you wrote that. Correct?” Holley asked.
“Correct,” she said.
“I want Trevor to cease contacting me entirely. You wrote this on June 28,” the defense continued.
“I don’t know how I’d know if he wasn’t going to contact me,” [Petitioner] claims.
“Did you have some reason to believe he was going to come to your house 130 miles away,” she was then asked.
“Yes, I did.”
The point here is to show that petitioner’s behavior after the alleged assaults is inconsistent with someone who is acting out of fear. Holley also had some success with undermining Petitioner’s credibility with respect to her statements that she feared Bauer by showing she had made false statements about Bauer to others, including her best friend and Alcoholics Anonymous sponsor. It may surprise readers to learn that there is generally no legally cognizable privilege between a person and an AA sponsor in the United States, and therefore Holley was able to use those conversations as evidence that petitioner had made previous false statements.
To establish a case for a restraining order, a petitioner must show either abuse or harassment. According to the California Court of Appeals,
Abuse is defined as “For purposes of this act, ‘abuse’ means any of the following:
“(1) To intentionally or recklessly cause or attempt to cause bodily injury.
“(2) Sexual assault.
“(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
“(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320 [of the statute].”
“(b) Abuse is not limited to the actual infliction of physical injury or assault.
Ordinary harassment must be proved by clear and convincing evidence, but abuse for purposes of a domestic violence restraining order need only be proved as more likely than not. It’s reasonable apprehension that Holley is targeting here: she wants the court to conclude that the petitioner is not in reasonable apprehension of serious bodily injury, or that any future bodily injury is imminent at Bauer’s hand.
This is where a split appears among appellate courts in California. There is case law to suggest that absent reasonable apprehension of a future assault, a restraining order cannot issue. There are also courts who note the statute is what we lawyers call disjunctive: not every element is necessary, and the single instance or act is enough even where apprehension of a future assault isn’t present. If the court follows the line of cases where reasonable apprehension is required, Holley’s cross-examination was very effective. If the court follows the line of cases that holds reasonable apprehension as merely one of several possible elements, this line of questioning is far less so.
At the same time, though Holley was effective at casting some doubt on whether the petitioner truly feared Bauer, some of her questioning was far less effective. For one thing, Holley badly overstepped when she accused the petitioner of “substitut[ing] drugs and alcohol for rough sex since sobriety[,]” a statement which is argumentative at best and damaging to her case at worst, by making her own client out to be a person who takes advantage of a recovering addict.
Holley’s insistence on focusing on conversations between the petitioner and her AA sponsor likely also backfired. In some conversations, the sponsor gave the petitioner advice on how to behave during the case. Holley attempted to use those conversations between the petitioner and her AA sponsor as evidence that she wanted money from Bauer. Those exchanges, however, may well have had the opposite effect, because the petitioner is not at this time suing for money damages. Following your sponsor’s advice for behavior during a lawsuit in which you are not seeking money is not evidence of a money grab or ulterior motive, it’s evidence for wanting a restraining order. That may have been Holley’s biggest blunder of the hearing. The fact that Holley went back to this conversation over and over again - even emphasizing the conversation on social media after the court recessed through media allies - suggests that she herself believes the cross-examination went badly. When you’re winning, goes the litigator’s saying, you shut up.
Perhaps most notable was what Holley was unable to accomplish. At no point during cross-examination was she able to make any headway in impeaching the petitioner’s narrative regarding the two alleged assaults. On that basis alone, the cross-examination was a major win for the petitioner.
In fact, redirect examination by the petitioner’s lawyer, in which the petitioner re-emphasized that she had felt romantic feelings for Bauer and wanted a relationship with him, undermined much of Holley’s limited progress. Redirect examination is questioning, usually friendly, by the direct examiner after cross-examination has concluded. Redirect, when done well, can explain any inconsistencies exposed in cross-examination. One very good example of redirect examination was this exchange:
“Ms Holley went through some text messages that you sent to your [best friend], one of them you said you were so excited that the restraining order had been granted, can you tell us why you were so excited?” [Petitioner’s] attorney asks.
“He can’t touch me. He was going to be held accountable. He couldn’t do it to anyone else. He couldn’t show up on my phone ever again,” she states.
That testimony, if believed by the judge, completely negates the exchange with the AA sponsor by showing why it was so important to the petitioner to win. It also shows, despite twelve hours of questioning, how little headway Holley actually made. Holley’s cross-examination really established that the petitioner had lied to her friends about Bauer because she had feelings for him, and they were worried about what he might do to her. That is not a triumph in a case that essentially says her friends were right to have been worried. The petitioner’s attorney ended redirect by focusing on the injuries the petitioner still has, which established both the severity of the alleged assaults and their relative recency, implicitly undermining Holley’s timeliness argument. And Holley’s limited recross, in which she asked the petitioner about why she wanted “Bauer’s life to be over” immediately after the petitioner testified about her jaw being in so much pain she couldn’t eat, would have been better off unasked.
The biggest disaster of the day, however, was Bauer’s expert witness, Dr. Jennifer Hammers. Dr. Hammers is a forensic pathologist who was called to testify that in her opinion the petitioner was not actually punched in the face, based on her review of the petitioner’s medical records. As best I can tell, she has extremely limited experience as a court-qualified expert, having previously testified in at least one court dispute concerning the denial of insurance benefits to a person where there was a dispute regarding whether the deceased died as a result of intentional suicide or autoerotic asphyxiation.
Now, paid expert witnesses are not unusual in any way; I’ve used more than a few in my career. That said, when you bring in an expert witness, it is vitally important to ensure they are credible as well as authoritative because a bad expert can torpedo your entire case. There are two things good experts always do: (1) draw their own conclusions, even where one side is paying them, and (2) ensure that the limitations of their conclusions are clearly established.
Dr, Hammers, however, was not a good expert. First, her testimony was based on the “science” of bruise patterns, which has long since been discredited. Notably, Dr. Hammers never examined the petitioner in person and relied solely on photographic evidence of bruising, which modern scientists say should never be done. As one medical journal explained:
Thus, coloration of bruises and the progress and change of color patterns cannot, with the exception of a yellow bruise, which may be considered to be more than 18 hours old, be used to time the injury. It should be emphasized that estimation of bruise age from color photographs is also imprecise and should not be relied on because the color values are not accurate (6). This has recently been confirmed in another study (7) that identified great interobserver variability in color matching both in vivo and in photographic reproductions. Other specific information (e.g., a witnessed blow) is the only way of reliably timing a bruise.
Dr. Hammers also made two colossal blunders in her testimony. First, she was asked by the petitioner’s attorney whether additional information, such as talking to Bauer, would have been helpful to her report. This was Dr. Hammers’ response:
She told the court: “That’s not something I was asked to do.
“As an expert, I review the information that’s provided to me. I don’t question what information I’m being asked to review.”
That’s just categorically untrue, and any experienced expert witness would never give such a frankly terrible answer. As one excellent article explains:
It is the expert’s first responsibility, therefore, to ensure that he or she has a full knowledge of all the underlying facts (at the very least those which impact the area of the opinion solicited) and full access to all relevant records. Merely accepting the word of the attorney, or the client, that, for example, “generally accepted accounting principals were consistently applied,” or that “the Board of Directors was informed and approved the transaction,” without verification, can have a devastating effect upon the expert’s credibility if proved wrong. And, if the expert’s credibility is successfully impeached on any point, it is impeached on every point.
So, always do your own due diligence and investigate all the underlying facts and assumptions you may be given. Never put total faith and reliance in what you are told.
This answer from Dr. Hammers was tantamount to saying “I just say what I’m told.” And that would be bad enough, except that Dr. Hammers made a second very bad mistake. When you’re testifying based on a science that could best be termed as “controversial,” such as bruise patterns, the last thing you want to do is undermine your own credibility. Yet here Dr. Hammers does just that (emphasis mine):
“Is it possible that someone could punch someone’s face and not fracture?” Dr Hammers was asked as [petitioner]’s attorney pushed her further on the injuries.
“I described multiple things that I would have seen, not just fractures,” she said, yet added that she did not believe it was possible.
Saying that you don’t believe that it’s possible for someone to be punched in the face without having a bone broken is a credibility-destroying moment, as anyone who has ever been punched in the face without having a bone broken can attest. I once had a case where a handwriting expert made a conclusion for the other side so utterly ludicrous that the judge and jury laughed; this is a similar moment. Dr. Hammers was as ineffective as an expert could possibly be: she used junk science to draw conclusions which she admitted were based solely on the materials and instructions provided by Bauer’s legal team and made a bizarre mistake in her testimony in the middle of it.
Dr. Hammers’ testimony was undermined further by the brief testimony of one of petitioner’s friends immediately afterward, who testified to having personally seen the injuries Hammer claimed didn’t exist.
The attorney asked: “What did you observe of [petitioner] an hour later?”
[The witness] explained: “She had two black eyes, scratches to the side of her face.
“She was in shock, she was scared, she didn’t know how to express what had happened, all she wanted to do was lay in bed because she felt safe at my house.
“She just wanted to lay and not move, she had been crying and throwing up, her head hurt, her jaw, she couldn’t open her jaw, she could barely talk.”
[The witness] didn’t see [Petitioner] vomit but did notice bruises behind her ears.
She was also told by [Petitioner] that her vagina hurt.
[The witness] said [Petitioner] “had a very large bruise at the top of her vagina stretching to her thigh.”
Thursday, the hearing is expected to conclude with Bauer taking the stand and invoking his Fifth Amendment rights, and then closing arguments before the Court makes a ruling. In other words, the substantive testimony is now in the books.
I speculated yesterday that Holley was creating a narrow path to victory: argue no reasonable apprehension of future injury, win the hearing on that basis, and then use the victory to claim vindication. That still appears to be her strategy, and she may well pull it off depending on which case law the court follows. But if the goal of the hearing was, as Bauer’s legal team stated again and again, to refute the petitioner’s allegations as untrue, Bauer’s legal team has utterly failed. There is simply no credible evidence in the record at this hearing that Bauer did not assault the petitioner. Her version of events is essentially uncontradicted. The only purportedly refuting witness Bauer’s team called was Dr. Hammers, who frankly should not be the expert at Bauer’s criminal trial should one happen. That Bauer’s team thinks they’re losing is underscored by their emphasis on the text messages between the petitioner and her AA sponsor, questioning petitioner’s motives. But at the end of the day, we’re left with this truth: no matter what petitioner’s motives were in bringing this action, Bauer never contradicted the conduct which allegedly gave rise to it. Without that conduct, there is no hearing, no matter what the petitioner’s motives are.
If the goal of Bauer’s legal team is simply to win this hearing, they have a decent shot at doing so if the Court accepts their argument about the likelihood this conduct is to recur towards the petitioner. But if, as Bauer’s legal team has repeatedly said publicly, the goal was to prove the petitioner’s allegations false, Bauer’s team already lost.
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.