Good news.
So what happens next?

Ummm ... so this judge does something which he had to know would have been controversial and then declares a mistrial because the publicity would have tainted the jury pool? Talk about pissing in the wind and complaining that it's raining.

If the defense attorney did this there would have been serious questions raised about his ethics. A prosecutor famously did something like this and he's been booted from his job and will likely be (or already is?) disbarred.

Something has become fishy about this ... maybe whatever board is in charge of doing such things will investigate?

DAS, what are you talking about? No attorney (defense or prosecution) has the power to do "something like this".

IANAL, but I know that. I should have been more clear. What I mean is to do something super-controversial or make a controversial statement that's guar-an-teed to give the story a lot of publicity and thus have an effect, that any reasonable person would realize was likely, of poisoning juries.

I.e. if a defense attorney were going off about something or other in such a way that any reasonable person would know that it would make the news (and the story otherwise would not have gotten so much publicity) and thus poison any potential jury, I imagine that defense attorney could be in serious trouble for, what's the legal term for shenanagans?

Nifong did something similar -- i.e. in terms of the almost inevitable effect on any jury -- in terms of jury poisoning in the Duke-Lacross-Team case, didn't he?

Yeah, like Cara said, what does happen now?
I know almost nothing about the courts system, (especially the U.S. one), does a mistrial mean there will be a new trial, or no trial, or what?
Help me Legal Beagles!

Well, there definitely has to be a new trial-- I know that much.

But what I don't know is if that means the order to not use the word "rape" is now invalid, and if it's going to go to a different judge, how long it's all going to take, etc.

And how about we all just save ourselves a headache and don't talk about the Duke case?

Thanks Cara!
And yep, I'm with you on your suggestion. (See, I didn't even mention it.)

DAS - I understand where you are coming from now. Thanks for explaining. Thanks also for not letting my “what are you talking about?� comment get to you. As soon as I read back my comment, I realized it came off as unnecessarily aggressive.

I think, however, that there are significant differences between the actions of this judge and those of Nifong.

Nifong spoke directly to the media and deliberately misrepresented facts in order to poison public opinion.

The judge in this case simply made a ruling which does have some precedence from other cases. It was the alleged victim (with some help from other advocates like Wendy Murphy) who publicized the decision. I am sure the judge figured she would just sign the order and follow along without protest.

Note: I do not know the law as it pertains to his order, but from a common sense perspective I agree with most here that his original ruling to ban the word “rape� was ridiculous.

Cara - Good idea. I wish I had read your comment before I made mine.

I know almost nothing about the courts system, (especially the U.S. one), does a mistrial mean there will be a new trial, or no trial, or what?

Generally, a new trial is possible in the case of a mistrial (except when the prosecution engages in misconduct in order to force a mistrial in hopes of a better jury next time). However, I have never heard of a case in which a judge orders a mistrial sua sponte (without either party moving for it) before a jury is even empaneled. Perhaps the article simply neglected to say that the defence moved for a mistrial, but it would be a rather odd omission. Usually, the remedy for prejudicial pretrial publicity, especially before a jury has been picked, is a change of venue.

The article is short on details, but it doesn't really make sense unless the judge is trying to reduce the likelihood of the prosecution refiling. It's not likely that potential jurors will know less about the case the next time it comes up for trial (if the prosecution doesn't just decide to drop it), so the remedy of a mistrial, which keeps the case before the same court, seems pretty useless. In any case, it seems as if the defence would have waived this issue if they hadn't already brought it up.

i.e. if a defense attorney were going off about something or other in such a way that any reasonable person would know that it would make the news (and the story otherwise would not have gotten so much publicity) and thus poison any potential jury, I imagine that defense attorney could be in serious trouble for, what's the legal term for shenanagans?

The Nebraska Rules of Professional Conduct set forth standards concerning trial publicity:

A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

DR 7-107(A)

Thanks Elise!

I now confer on you the title of Official Legal Beagle.

You may commence Beagle-like behaviours immediately.

I should note that my specific familiarity with the law of Nebraska is limited to the quoted passage from the RPC. I make a point of avoiding excessive familiarity with Nebraska (as do the Nebraskans, judging from the census data I've seen), so my comments are limited to more general principles that tend to be relatively consistent throughout the country.

This was Safi's second trial. At the first trial the jury deadlocked because the prosecution was unable to convince the full jury that a rape occurred. Apparently, she and Safi met at a bar, shared drinks and eventually, according to trial testimony, kisses inside the bar. They exited the bar together and a security camera showed that she left hand-in-hand with Safi and she did not appear to be stumbling or drunk. Several of the witnesses, including several of her friends, testified that they did not believe she was drunk and that she willingly left the bar with Safi.

She told police that she remembered nothing after leaving the bar until she awoke about 7am to find Safi having sex with her and demanded that he stop (which he did). She also asserted that, fearing for her safety, she left his apartment 5 to 10 minutes after she awoke. However, she told the sane-nurse that she remembers having sex at about 2am (and then apparently decided to stay the night). Rather than leaving immediately after waking at 7am as she told police she actually made several calls on her cell-phone and stayed with Safi for about an hour at which time Safi drove her home. She later admitted to getting the ride from Safi but falsely claimed Safi dropped her off several blocks from her home because she didn't want him to know where she lived. But later under cross-examination admitted this was a false statement and that Safi actually dropped her off at her home.

Here is a good thread on Advice Goddess:
http://www.advicegoddess.com/archives/2007/06/youre_supposed_1.html

This was Safi's second trial. At the first trial the jury deadlocked because the prosecution was unable to convince the full jury that a rape occurred.

By design, one might add, since the complaining witness was required to call her rape "sex", which would certainly create doubt in the minds of jurors who were not even made aware of the requirement.

Hey Sgt,

What is your point?
Do you like to be on the side of people who don't believe rape victims?
Why is that, pray tell?

Go back to York.

Yours Sincerely,
I-really-hate-rape-apologists.

What is your point? Do you like to be on the side of people who don't believe rape victims?

Interestingly, the good sergeant doesn't appare to dispute that a rape took place: "She told police that she remembered nothing after leaving the bar until she awoke about 7am to find Safi having sex with her and demanded that he stop (which he did)." According to Sgt. York's account, there is no doubt as to the truth of that statement, which, in itself, is evidence of rape (sexual intercourse with a person who is unconscious, incapacitated, or otherwise unable to consent).

Good point, Elise, you are both a beagle and a bloodhound, it seems!

please keep us posted. This whole case has made me want to vomit.
Isn't the point of a trial to prove or disprove the person committed the crime? I understand innocent until proven guilty, but the alleged crime IS rape, so there's nothing wrong with calling it such.

Over in the UK we have a (can you believe it) LOWER conviction rate for rape than even you guys do. It's about 6% of reported rapes, despite the criminals being known to their victims the vast majority of the time. We're also in the process of decriminalising child rape.

Both sides of the Atlantic though we now have the opportunity to go online and watch some rape. This was my post on the subject, after some really sickening research.

anorak - All York did was offer some factual information on the night in question and on the first trial. Have we reached the point where examining a case makes one a rape apologist? If anything, the facts presented suggest that this may not have been rape, though what we know so far certainly does not prove this. There is nothing, however, in York’s post excusing it if it was rape.

Here is a very interesting article with quotes from some of the jury from the first trial. Even those who voted to acquit seem suspicious of the accused. While I am leery of the fact that the accuser will have the chance to clean up her story (a major problem in her case was her inconsistent testimony about him dropping her off in the morning; she now denies the inconsistency), it is certainly compelling to hear that one of the jurors who voted to acquit was hoping for a new trial.

http://www.journalstar.com/articles/2006/11/12/local/doc45565b0e3336f182485880.txt

She told police that she remembered nothing after leaving the bar until she awoke about 7am to find Safi having sex with her and demanded that he stop (which he did).

She woke up to some guy "having sex" with her? Sounds like rape to me. One can't exactly consent to sex when one is sleeping or unconscious. It's sad how some guys can convince themselves that this is not rape. If you enjoy having sex with a lifeless body that can't refuse, do everyone a favor and join the Real Doll community.

I would like to think that it is possible to have a discussion about the idiocy of the judge's decision in excluding the word rape without "convicting" either the victim or the accused. I had the same problem with discussions about the Duke rape case (sorry Cara!). We can discuss the legal merits of a decision and the issues those decisions cause for women, men and future rape victims without placing guilt or blame anywhere in the specific trial.

Anorak, would you consider any person who chose not to believe a person who accused another person of rape an "apologist" immediately? Are you asserting that there is never any good reason to believe the accused? Not that I think Sgt. York made any such assertions, but if someone were to say "based on the article I read about the first trial, I think the accused should be acquitted", would that person automatically be a bad feminist / apologist? I ask because I do know a man who has been accused and I do not believe his accuser's story. I simply do not. A jury did, and he is in jail waiting for a retrial, which is the way of things, and he knows it. He spends a lot of time thinking about how he can prove his innocence, and get back to his family. Am I a bad feminist because I think, in this case, the girl is lying?

Anorak, would you consider any person who chose not to believe a person who accused another person of rape an "apologist" immediately? Are you asserting that there is never any good reason to believe the accused? Not that I think Sgt. York made any such assertions, but if someone were to say "based on the article I read about the first trial, I think the accused should be acquitted", would that person automatically be a bad feminist / apologist?

That would be a valid point in the case of someone who denied or doubted that a rape took place. Sgt. York, on the other hand, does not dispute that a rape took place (penetrative intercourse with an unconscious person) but nonetheless thinks the guy should be acquitted. That says "apologist" to me.

Elise - Great point. If he had sex with her while she was unconscious, as York is contending, then that would most certainly have to be considered rape. Where, however, does York say the man should be acquitted?

Further to this point: The Journal article is a bit vague, but it seems that Safi is claiming she participated in the morning sex. While I would tend to believe Bowen under normal circumstances (I actually still do, but with definite reservations), her credibility is hurt by her previous lies and exaggerations (according to the story).