Wednesday September 21st, 2016

In a ruling sought by attorneys for New York Knicks guard Derrick Rose, U.S. District Judge Michael Fitzgerald on Tuesday ordered that the name of the woman accusing Rose of sexual battery be made public if her civil case against Rose goes to trial. The woman, who is called Jane Doe to protect her identity, has sued Rose and two of his associates, Randall Hampton and Ryan Allen, for $21.5 million. Her lawsuit is scheduled to go to trial on Oct. 4 in the U.S. District Court for the Central District of California.

As detailed in previous SI.com legal articles, Doe contends that Rose—whom Doe dated for a couple of years—and his two associates broke into Doe’s Los Angeles apartment on Aug. 23, 2013. While the three men were in her apartment, Doe alleges, they raped her. At the time, Doe maintains that she was very intoxicated and incapable of offering consent. Rose, who has testified that he does not understand the meaning of the word “consent,” acknowledges he had sex with Doe but insists that the sexual encounter was consensual.

To be clear, this is a civil case where if Rose loses, his only penalty will be a court order that he must pay Doe some amount of money. Although under California law Rose could theoretically be charged with accompanying crimes until 2019, there is no expectation that he will face such charges.

Rose and Doe could still reach a financial settlement over the next couple of weeks that would preempt a trial. In a settlement, Rose would pay Doe an amount of money in exchange for Doe dropping her lawsuit. As explained below, Rose has incentives to seek a settlement even if his retelling of facts is correct and Doe’s is wrong. Depending on what the public learns during the trial, Rose could face discipline by the NBA, the Knicks and companies with which Rose has signed endorsement deals—most notably, Adidas, which in 2012 signed Rose to a $185 million deal.

Judge Fitzgerald’s ruling about Doe’s name being made public was expected

As a general matter, judicial proceedings in the United States are expected to be open and public. Rule 10(a) of the Federal Rules of Civil Procedure, a body of rules that govern Doe’s federal case against Rose, makes this clear. Rule 10(a) stipulates that the names of “all the parties” be known. This rule is often cited to rebut arguments that a litigant be allowed to remain anonymous.

Just as important, judges have often opined that a plaintiff’s anonymity endangers the ability of a defendant to receive a fair trial. Judge Fitzgerald expressed this very concern in an earlier written order, and SI has learned the 57-year-old judge expressed this concern once again during Tuesday’s hearing. Judge Fitzgerald fears that Doe remaining anonymous during the trial might lead jurors to mistakenly conclude that her anonymity reflects an opinion by Judge Fitzgerald about whether Rose ought to be found liable. One of a judge’s most important duties is to signal to jurors that he or she is truly neutral. Along those lines, a judge does not want to sway jurors—either expressly or implicitly—to rule a certain way. If Judge Fitzgerald improperly directs the jury to find Rose liable and then the jury finds Rose liable, Rose could cite such behavior as evidence of prejudice and grounds for an appeal or a new trial.

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Reassessing the details surrounding Derrick Rose's civil sexual assault lawsuit

A plaintiff’s anonymity in a high profile case such as one involving an NBA star like Rose presents still other challenges that bear on a defendant’s capacity to receive fair trial. In this case, the media can highlight Rose’s sometimes troubled background and expose his past failings, while the media’s focus on Jane Doe is entirely about her allegations and the narrative she has presented. This dynamic can lead to asymmetry in media coverage, where coverage is more critical of the defendant than the plaintiff. If such coverage were to influence prospective jurors, it would potentially make it more difficult for Judge Fitzgerald to empanel a fair jury.

A plaintiff’s anonymity can also make it more difficult for a judge to capably preside over a trial. If Jane Doe were to remain “Jane Doe” during the trial, Judge Fitzgerald would need to warn each and every witness who testifies not to use Jane Doe’s real name at any point. Even with such an admonishment, witnesses are human and sometimes make mistakes. If a witness were to inadvertently mention Doe’s real name, journalists and members of the public attending the trial would hear it. From the standpoint of administrative efficiency, the plaintiff’s name at being known to everyone at the start of trial makes the judge’s job much more manageable.

Also, in the infrequent instances where a judge has allowed a plaintiff to remain anonymous, it is often when the plaintiff is a child. A judge is more inclined to create an exception for a child, who is more vulnerable to experiencing emotional trauma if his or her identity becomes known and whose identity is protected by the legal system in other ways. Adults who were victimized as children are also sometimes able to navigate through courts as anonymous plaintiffs. Doe, in contrast, is an adult and was an adult when she claims that Rose raped her in 2013.

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Derrick Rose’s accuser and her attorneys give new insight into civil suit

Doe’s attorneys nonetheless offered sensible arguments about keeping her name confidential

While I have just outlined compelling reasons for Jane Doe’s name to become known at trial, keep in mind Doe’s attorneys, Waukeen McCoy and Brandon Anand, articulated persuasive reasons for Doe to remain anonymous. They stressed that once Doe’s name becomes known, she will instantly become a public figure and possibly the target of harassment. In a conference call last week that I participated on, Doe expressed concern that her family might be harassed if her name becomes known.

Further, in a world where the Internet preserves a record on all of us, the disclosure of the real name of Doe, who is currently a student, will be forever linked to Rose and the alleged rape. This will be true when she applies for jobs, mortgages and other pursuits that require background checks.

Although those are important reasons in favor of Doe using her pseudonym during trial, Judge Fitzgerald assigned greater weight to the reasons against. Also, it is unlikely that Doe’s attorneys will seek an “interlocutory appeal”—which here would be an appeal filed to the U.S. Court of Appeals for the Ninth Circuit before the trial starts on Oct. 4. Such an appeal would ask the Ninth Circuit to reverse Judge Fitzgerald on the question of whether Doe’s name should be made public at trial. Interlocutory appeals are seldom granted and Judge Fitzgerald’s reasoning, although ripe for debate among legal scholars, is generally consistent with precedent.

The possibility of a pretrial settlement looms large

The public learning of Doe’s real name is predicated on the trial actually starting. As explained previously on SI.com, Rose has many good reasons to settle the case with Doe before trial. Even if the jury finds Rose not liable, his reputation could be damaged depending on potential witness testimony and the introduction of unflattering evidence. Such testimony and evidence might raises questions about Rose’s character.

In that same vein, executives at Adidas might be concerned about how consumers of their products view Rose and whether Rose’s endorsement of Adidas products remains a positive or negative. Given “morals clauses” in most endorsement deals and given that those clauses make it relatively easy for major companies to exit endorsement deals when an athlete encounters controversy, Rose would seem to have logical reason to reach a settlement and avert a trial.

On the other hand, perhaps Rose believes that the only way to clear his name at this point is win the trial. It would be a calculated risk, but one that Rose might just take. Either way, SI will be covering it.

Michael McCann, SI's legal analyst, is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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