Woman Faces Jail If She Doesn't Watch Video Of Her Being Gang-Raped

[matcom]

<snip>

A Naperville woman's refusal Tuesday to view or comment under oath on a videotape that reputedly depicts her gang rape could end up derailing the trial of one of her accused attackers.

Fifth District Cook County Circuit Court Judge Kerry M. Kennedy has given the woman until this morning to decide whether she will answer a defense attorney's questions about the video.

The tape is considered by many courtroom observers to be the linchpin in the criminal case against Adrian Missbrenner, 20, of unincorporated Burr Ridge.

Missbrenner is charged with criminal sexual assault in the Dec. 7, 2002, incident in his parents' home. Three other young men, including one who reportedly has fled the country, also were charged.

The woman, now 20, was 16 at the time of the incident. She has said she went to a party at Missbrenner's home and lost consciousness after an alcoholic beverage chugging contest.

She said she awoke the next day to find herself naked from the waist down, with parts of her body covered with obscenities that had been scrawled with a felt-tipped marker.

<snip>

Kennedy on Tuesday warned the woman she could face charges of contempt of court and possibly jail if she continues to refuse to view the tape and answer Campanelli's questions about it.

Campanelli on Tuesday filed a motion to dismiss the case against Missbrenner based on the woman's refusal to watch the video and submit to questions about it. Kennedy delayed his decision on that motion until this morning.

more>>>>>>>>> http://suntimes.com/output/news/cst-nws-rape01.html

[Hugin]

1. Doesn't the *existence* of the tape nullify the need to question?

[KitchenWitch]

2. That would make too much damn sense!

God gods, sometimes our justice system is way harsh on the victims.

[Hugin]

8. Let's see... We have this video of someone being murdered, but, we can't..

use it because we can't question the victim.

I know it sounds outlandish... However, this is exactly the
precedent which is being set here.

[KitchenWitch]

9. I know...boggles the mind.

[Shine]

78. Thank you!

:thumbsup:

[redqueen]

3. That's an outrage.

:grr:

[LostinVA]

4. This seems rather sick -- and cruel --to me

And, not necessarily something needed. There has to be a better way they can handle this -- even a transcript of the tape would be better. Have any psychologists, etc. testified about the harm this could do?

[DS1]

5. Justice Kerry Massachusetts Kennedy, eh?

[Shell Beau]

6. Does the tape not give enough answers? My word, this poor

woman probably doesn't want or need to see what happened to her! How cruel!

[LisaL]

7. WTF is she even going to answer? She obviously was

unconscious or out of it. Seriously, seems like victims have no rights whatsoever.
Why on Earth does she need to see that tape? The jury can obviously view the tape and decide for themselves.

[Ron Mexico]

10. Unbelievable. She was unconscious, right? What is she

supposed to add?

[bettyellen]

19. probably to ID them, but this is horrible still. my brother had to watch

hours of video of a little girl being raped, mutiple times (to count the # of incidents on video), in order to file the charges.
he threw up for a week. i thought it was really screwed up. but this is awful.

[Ron Mexico]

20. The people responsible for this

should be taken out to a dark alley and rolled. I have no problem with street justice in this case.

[realisticphish]

11. I can't see any

legal reason for her to watch the video.

[Deja Q]

63. Illegal underage drinking - meant to get the rapist scum off. Again.

x(

[Maddy McCall]

12. Contact info here.

Hon. Kerry M. Kennedy
Firm: State of Illinois, Circuit Court, Cook County Judicial Circuit

Address: Richard J. Daley Center
50 Washington St., Room 1001
Chicago, IL 60602


Phone: [phone]

Fax: [phone]

E-mail:
Web site: http://www.state.il.us/court/circuitcourts
http://www.cookcountycourt.org

[matcom]

13. BAM!

look at you using the power of the Internets :thumbsup:

[Maddy McCall]

15. I'm about to use the power that Alexander Graham Bell gave me, too.

:hi:

[Maddy McCall]

14. He's a Democrat. I'm shocked.

http://www.isba.org/sections/catalyst/3-02a.htm

[AngryAmish]

24. All Cook County judges are Dems

That is how the game is played here.

[Maddy McCall]

37. "That is how the game is played here."

What do you mean?

[AngryAmish]

82. There are not a lot of Repubs in Cook County

There are 2 ways to get on the bench - get appointed by the Chief Judge or get elected. Even if you are appointed you have to face the voters eventually.

In Cook County there are 2 different judicial elections. Some are elected countywide and some are elected into sub-districts that are a discrete geographical area of the county (this is to promote diversity).

Nobody knows who the judges are (there are hundreds). The party runs a slate of recommended judges who always gets elected. All these guys are really heavily connected or have given the requisite amount of campaign contributions over the years to Daley supported candidates that he gets paid back with a job for life at over $100k. The other way to win is to have some name recognition from previos political runs or have an Irish name (people have literally changed their names to Irish ones to get elected).

[LostinVA]

84. Yup -- like the Mayor of NOLA

[MountainLaurel]

74. Why?

Shocked, that is? Dems can be just as women-hating as the other side.

[Maddy McCall]

16. Contact Info for the Illinois Commission on the Status of Women.

http://www.state.il.us/commission/women/about.htm

THIS is who we should be emailing, and requesting that they take our email to the Judge's office.

http://www.state.il.us/commission/women/about.htm

Ellen Solomon
Office of the Governor
The Governor's Commission on the Status of Women
Executive Director
James R. Thompson Center
Suite 16-100
Chicago, IL 60601
312-814-5743
Erika Goodman
Office of the Governor
The Governor's Commission on the Status of Women
Special Asst. to the Executive Director
James R. Thompson Center
100 W. Randolph
Suite 16-100
Chicago, IL 60601
312-814-3940

[e-mail]

Rebecca Fyffe
Office of the Governor
The Governor's Commission on the Status of Women
Asst. to the Executive Director
James R. Thompson Center
100 W. Randolph
Suite 16-100
Chicago, IL 60601
312-814-8202

[e-mail]

[crispini]

17. Un believeable.

:kick: Will send email, can't call right now.

[BikeWriter]

18. Whew what a bunch of assholes!

[Maddy McCall]

21. Matcom, may I post this in the activist forum?

I want to initiate an email campaign to the Commission on the STatus of Women in Illinois.

[matcom]

30. kick ass Maddy

[AngryAmish]

22. Sorry but she has to answer the questions

They may or may not be guilty of raping her. The trial is to find that out legally (we all can have opinions but the jury is the one who counts). It appears that the defense is consent. She testified that she was so drunk she does not remember her actions. If the video shows she was sober then she must be impeached with the tape. It sucks, but it is the constitution.

Why jail? Because if she refuses to answer the questions then the guy walks and is free to do this again.

[Hugin]

23. Well what about my assertion above?

What if she were a murder victim... Would she still be required to testify?

[AngryAmish]

26. No because she would not be testifying

Impeachment is a funny thing. You are not asserting a fact (ie you are wore blue pants). You are contradicting someone with a prior inconsistent statement or action (you said yesterday that you wore red pants or a picture of you wearing yellow pants). It casts doubt on their credibility and is not substantive evidence.

[Solon]

27. No, but remember this...

OK, let's say there is a tape of one guy stabbing another guy, both are easily identifiable in the tape, and the victim dies. In that case, the tape is simply a matter of evidence, and the perp may have little to know defense for such an action. However, in this case, if the taping of the rape shows her conscious and aware of what she is doing, then maybe she is lying, its certainly possible, but then again, the tape of the guy who stabbed the other may have had the victim take the first lunge with the knife and it was edited out.

[Hugin]

29. I guess if the victim were dead s/he couldn't be lying.

This is pouncing on the victim...

[Solon]

33. I'm only talking about a matter of law...

We don't know what is on the tape itself, if it shows her story to be inconsistent then she may not be a victim at all, this is the reason we have trials to begin with. The perps may very well be guilty, but it is best to cover all bases, for it does no good if the guilty go free or the innocent are sent to jail.

[Maddy McCall]

35. Then let the defendant's attorney show the video....

and let the victim leave the room while it's being shown.

Why does she have to remain in the courtroom while her alleged rape is being shown to all. My god, she was only 16 when this happened.

[Left Is Write]

36. That's my question.

Why does SHE have to view the tape?

[AngryAmish]

40. Because she is the one being impeached

[Maddy McCall]

42. So?

Even if it DOES impeach her, the prosecution (which acts on the state's behalf, not hers) can respond to any impeaching evidence, as happens in EVERY OTHER court case in America.

[Nicholas D Wolfwood]

47. How can you respond to evidence

when you refuse to see said evidence?

How do you answer questions about something specific that occurs on the tape if you don't even know what the attorney is asking you about? You can't, which is exactly why it must be watched.

Listen, there is no question that this is terrible, but so is putting an innocent man in jail. Creating two victims is not justice.

[Maddy McCall]

53. Judge backed down. See update.

Evidently, he was convinced that he was wrong. Maybe some DUers would be wise to learn from this judge.

[Nicholas D Wolfwood]

64. Good, I'm glad he did.

But there still MIGHT have been a very good reason to force that and none of us here know because we haven't seen the tape. That's my only point.

[Maddy McCall]

66. And the jury can watch that tape without the state's witness sitting there

There was no necessity for the alleged victim to watch it with the jury, in front of a crowded chamber. That's my only point.

[Nicholas D Wolfwood]

68. How did you know that though?

You didn't watch the tape. You didn't know what was on it prior to the judge's reversal. For all you know, there might have been a compelling reason for the judge to force the victim to watch that.

[Maddy McCall]

71. Read in my response below what it shown on the tape.

First of all, the guy who was acquitted was not shown on the tape having sex with the victim. He was on the tape, but not having sex.

Second of all, prosecutors describe the tape as the victim being unconscious, and people spitting on her and writing derogatory terms on her while she's naked and unconscious.

Of the two people shown having sex (raping?) with her on the tape, one is now being tried after fleeing the country, and the other is still at large after fleeing the country.

The person on trial now denied existence of the tape, until one of his friends gave a copy to the cops--therefore, not only is the alleged perp being charged with rape, but also with child porn, since the victim was 16 at the time of the rape, and the alleged perp was 20.

Becoming a little more clear, the more info we get, isn't it?

The only reason the first guy was acquitted is because he wasn't shown having sex with (raping?) the alleged victim on the tape. What's to come is the verdict of the guy who WAS shown (raping?) on the tape, and hopefully the other person who allegedly sexually assaulted the victim will be apprehended, so that he can face charges.

[Nicholas D Wolfwood]

80. Again, were you privy to that information before you posted it?

Or did you just obtain it now?

[Maddy McCall]

102. I know the difference in right and wrong.

And from the details I ascertained from the articles I read BEFORE I read the article in which the judge gave in, I believe my conclusions were well reasoned.

And I stand by every post I've posted in this thread. Do you?

[Nicholas D Wolfwood]

106. I absolutely do.

This nation is INNOCENT until proven guilty, not the other way around. The defendant deserves a FAIR TRIAL, no matter what horrible crimes he/she might have done. If it were absolutely necessary for the victim to view the tape, then the judge would have been well within his means and correct to force her to do so.

[LostinVA]

93. Maddy -- you're not a sworn jury, you can call it rape

Those lying bastards.

[LisaL]

83. What freaking good reason?

The jury can watch the tape. Why does the victim have to watch the tape too?
She doesn't remember what had happened to her during the attack.
What is she going to add?

[Nicholas D Wolfwood]

123. Read my posts.

I clearly state what reason there might have been.

[LostinVA]

89. If she wasn't conscious, or else was blind drunk, she

wouldn't eb able to answer a damn question anyway. I've been so drunk in my youth I blacked out the whole night.

Again, this is nothing but a nasty tactic.

[LisaL]

92. Exactly. She knows what had happened to the point she passed

out. In fact, having her to view the tape would contaminate her testimony, because she would view the tape and testify to what she saw on the tape, not what she knows had happened to her.

[Nicholas D Wolfwood]

131. I haven't seen the video, so I don't know how to answer that.

Again, I'm not supporting the decision, just saying he's got the right to make it. And being that we knew next to nothing about this, I won't support the judge's lynch mob that's formed here.

[LostinVA]

87. Exactly -- This is intimidation only

You would think the defendant's attorney WOULDN'T want her to view it -- so he can impeach her. This is just intimidation. That's it.

[Nicholas D Wolfwood]

38. There are ways to easily prove whether a tape was edited or not.

So it's not quite the same.

[Solon]

55. Actually, I wasn't talking about editing per se...

It was just an example, what I basically mean is that while a picture, even a motion picture, is worth well over a thousand words, it can still be misinterpreted, rather easily.

[Hugin]

28. Okay, if she were dead would she be required to answer questions

or the accused walks?

[AngryAmish]

31. No because she would not be testifying

The tape is being used for impeachment purposes.

[Maddy McCall]

73. No, it's not. Read what is shown in my response to Vash below.

It was a bad ruling by the judge, and he's acknowledged that now.

[Maddy McCall]

34. See post 32.

Other relevant questions. Why did two of the defendants flee? Why is this viewing of the video not a requirement in other assault cases?

[Nicholas D Wolfwood]

39. Assault cannot be consented to in any case.

Group sex can be.

[Maddy McCall]

41. And that's for the jury to determine.

However, the alleged victim does NOT have to watch the video, when it can be played by the defense, if indeed it exhonerates the defendant. She need not be in the courtroom giving a play-by-play of the video.

The state's prosecutors (who are acting on behalf of the state in a rape case; she is only the state's witness) should be protesting this judge's order like crazy.

[Nicholas D Wolfwood]

46. It seems the defense has a good reason for it.

I'd be very surprised if indeed the prosecution didn't protest like crazy. It most likely went to a private sidebar where the defense attorney explained the need for the video to be viewed as part of the questioning.

I'm guessing there's a specific part of the video that the defense attorney would like to ask questions about. If that's the case, then there's no way around forcing the woman to watch the film, since there's no other way to ask the question other than to point it out.

[Maddy McCall]

48. What it seems to be isn't always what it is.

I'm well aware of that.

Are you an attorney? Just wondering about your expertise on this topic.

If the woman knew that there was a video impeaching her charges of sexual assault, why would she continue with the court case, even taking it to trial, instead of letting it go?

[WeRQ4U]

49. It's not always her choice.

It's in the hands of the State prosecutor.

[Maddy McCall]

52. See the update. Judge backed down.

YAY! :bounce:

[WeRQ4U]

56. Chalk one up for the State.

Now let's hope that this isn't materially prejudicial to either party's case. Otherwise, there may be problems down the line.

[Maddy McCall]

67. In many rape cases, appeals are granted.

If one is granted in this case, it won't be unusual, and not necessarily because of the controversy over the video.

[WeRQ4U]

104. I'm aware of that.

But what I'm getting at is that if the judge's decision somehow runs afoul of precedent, and the party's case is prejudiced by that, then they may have to do it all over again.

Because I don't know the factual background and the procedural posture of the case, I wouldn't know whether this is even a remote possibility. I don't think anyone here really does.

[Maddy McCall]

116. Please give me precedent in which an alleged rape victim...

has been threatened with contempt for refusing to watch a tape of her own sexual assault, inside a courtroom as trial is ongoing.

I'd love to read about that.

[WeRQ4U]

130. It would take some looking, but I'm sure I could find something similar.

Besides, what difference does it make if I DO find that precedent? I'm simply stating how the judge went about making his decision. You have your mind set that this evidence was suppressed or what-have-you merely because it was truly aweful or because activists somehow got the judge to grow a previously-absent conscience. I'm sorry, but I don't agree.

I'm simply stating that whether or not this evidence should or should not be allowed is a matter of applying the rules of evidence. That's all.

[Maddy McCall]

134. The judge reversed his decision on the fact that...

forcing the woman to watch the tape was an invasion of privacy. Did you not read the update article?

"She said the group of attorneys argued in a legal pleading that making the woman watch the tape was an invasion of privacy under Illinois law and irrelevant to the case."

[WeRQ4U]

143. Yes I read the article.

The article does not state that the judge "reversed his decision on the fact that forcing the woman to watch the tape was an invasion of privacy." What the judge did state was:

"With little elaboration, Kennedy agreed with prosecutors' arguments that the Constitution grants special treatment to rape victims. ...

"I am not going to force her to watch the video during cross-examination,'' Kennedy said. "I don't believe Adrian Missbrenner's case is being injured."

This last line proves my point. He made his determination based on whether or not the probative value was outweighed by the prejudicial content of the videotape. If he HAD believed that the probative value was higher, and that Adrian Missbrenner's case would have been injured without the tape being played, then he could have played it. And should Mr. Missbrenner be found guilty, and should his attorneys appeal that decision, the Judge's decision to NOT have her view the tape will be scrutinized by the appeals Court. And based on whether or not they agree with the the Judge's decision, may make a different decision.

Like I said, I haven't got a clue as to what actually was going on here, or the demeanor of the alleged victim, and frankly neither do you. All I'm trying to convey is that Judge's don't make decision based on activism or public opinion. They make them based on carefully formulated rules and interpretations of those rules in case law.

[Nicholas D Wolfwood]

61. Time out.

There's a difference between what I'm saying and what you think I'm saying.

I am NOT passing judgement on what's on that tape as you seem to think I am. In fact, what IS on the tape means extremely little to the matter at hand. Personally, I doubt the tape impeaches her, but that's irrelevant.

This is the bottom line in this issue: The defense attorney claims something on that tape indicates that the victim gave consent to group sex. In order to ask answer about that specific event, the victim must know exactly what she is being questioned upon. The judge agreed that there is a compelling reason for this line of questioning to continue. Granted, the story does not give all the details in the case, so I don't know if the judge has viewed the tape before making his decision, but he most likely has.

Your "if" question is completely and totally irrelevant when it comes to the point of law. No one knows why she would or would not do that. Whether or not she impeached herself is for a courtroom to decide, and they can't do so unless the evidence is presented and she's questioned about it. The judge determined there might be a reason to pursue that, and having not seen the tape, neither of us are in a position to determine whether or not the judge was right to make that decision.

No, I'm not a lawyer.

[Maddy McCall]

65. Well, all we have to do now is await the verdict.

The judge backed down from a bad decision. That speaks more to me than any arguments on this board.

[Nicholas D Wolfwood]

69. The arguments aren't destroyed by the new ruling at all.

The arguments, just like yours, are all based upon not having any knowledge of what's on the tapes. My only points were to say that the judge MIGHT have had a good reason for his ruling. We don't know.

[Maddy McCall]

70. Did you read the update article I just posted?

From that article:

The videotape was viewed in the March 2005 trial of Christopher Robbins of Brookfield, who was acquitted of sex charges after arguing she consented to sex with him in an incident that wasn't videotaped. Robbins allegedly is seen on one segment of the tape, but not engaging in sex with the woman.

Prosecutors allege that the videotape first shows another defendant, Burim Berezi of Brookfield, having sex with the woman, then it shows Missbrenner. They say the tape shows her unconscious as people spit on her and write derogatory words on her naked legs and abdomen.

Berezi fled the country after being charged and remains at large. Missbrenner also fled but returned from Europe in May 2005. A jury convicted him of violating his bail bond, and he was sentenced to six months in jail, which has been served while he was being held without bail on the sex charges.

The fourth defendant, Sonny Smith, 20, of Brookfield, who operated the camera, pleaded guilty to child pornography and was sentenced to the Illinois Department of Corrections boot camp.

*******************

Now it becomes more clear, doesn't it?

[darmok167]

77. Hindsight is always 20/20 :-)

You were right. And now I even doubt the defendant has any ground for appeal. Hard to argue against rape when the victim is unconscious.

[Nicholas D Wolfwood]

79. Sure that clears it up, but we WERE flying blind

Every defendant deserves complete due process under law and has the right to a fair trial. I am not going to join a lynch mob villifying a judge when almost no one that posted here had information beyond the OP.

Based on original assertions, there might have existed scenarios under which the judge was correct in making his original decision. Once again, that was my only argument.

[LisaL]

85. The original article clearly stated the victim was

drunk to the point she didn't remember the attack. There was nothing that she could have added by watching that tape. It was very clear.

[Nicholas D Wolfwood]

91. What the article says and what the video tape showed

could have been two entirely different things. That's the point of the inquiry. The article says she claimed to be drunk and unconscious; the defense attorney says there is evidence on the tape to the contrary. I think that was very clear from the article.

[LisaL]

94. Then the jury is going to view the tape and decide.

No need for the victim to view it.
Normally victims do not view tapes, because usually tapes do not exist.
Making her to view that tape serves no purpose whatsoever, and in fact would contaminate her memory of the alleged attack.

[Nicholas D Wolfwood]

101. Once again, there COULD have been a reason for it.

Usually, there is not, and that's why victims don't usually have to view those kinds of tapes. I feel like I keep saying the same thing over and over again here. There very well could have been a need for her to see the tapes, and being that NONE OF US HERE KNEW all of the facts involved, it was wrong to form a lynch mob against the judge. That was my point.

[Maddy McCall]

105. NO, but must of us used our common sense to come to a conclusion...

and it appears our conclusion was correct, as opposed to yours.

No one formed a "lynch mob" against the judge, who, himself, realized later that his decision was a bad one and reversed it. Since when did emailing one's concerns to one's officials become extralegal justice?

Jeez.

[Nicholas D Wolfwood]

110. Common sense? What common sense?

The leap to the conclusion that everything the victim said was absolutely true, without ever having seen the tape myself? Sorry, but that's not common sense - that's justice by an angry mob.

Why even have a trial if you're just going to take her word for it? That's why we have judges - the judge, having seen far more evidence than ANY of us on DU have, made the decision that it was necessary for her to watch the tape. My only point has only been that it might not have been extraneous and very well could have been necessary for the case to proceed fairly. Hell, I didn't even give the judge the benefit of the doubt on the actual decision, only on his power and possible necessity to do so. Please point out where that fails common sense.

[Maddy McCall]

113. Nope, I didn't leap to conclusions. I read articles about this...

and drew my conclusion from that. And it appears that what I thought to begin with has been affirmed by the judge realizing the folly of his decision yesterday, and reversing it.


And you are STILL arguing about it. :eyes:

[Nicholas D Wolfwood]

121. I keep hearing "articles" plural. Where are these other articles?

All I see is the one article, and then the update which was posted well after I made my original comments. And in that original article, I see NOTHING to draw any such conclusion from, and I certainly still don't see a copy of that tape anywhere, do you? Yeah, didn't think so.

[Maddy McCall]

136. Google's your friend. I've read numerous articles on this case throughout

the day. Here's some for starters. Knock yourself out:

http://www.nbc5.com/news/4834044/detail.html

The guy's a liar.

"Missbrenner testified Tuesday he fled to Mexico City in August 2004 and then boarded a flight to Belgrade, which stopped first in Frankfort, Germany. He said he was aided in his escape by two Serbian-speaking men he met while studying at the College of DuPage.

During the stop in the airport, Missbrenner testified he realized he had made a mistake in leaving, but decided to continue on to Serbia because he was traveling with an invalid Serbian passport.

"I wanted to turn myself in. I wanted to go home," Missbrenner testified on the stand.

He testified that he was held captive by Serbian mobsters who had aided him in his escape. They demanded money he couldn't pay, he testified.

Missbrenner said he was able to escape by breaking down the front door of a Belgrade apartment while his captor took a shower."


http://www.findarticles.com/p/articles/mi_qn4155/is_20050530/ai_n14660047

"What I did was not nice."


http://www.suburbanchicagonews.com/sunpub/naper/top/n27tape.htm

"A videotape shot during the Dec. 7, 2002, party shows several young men having sex with the girl, whom Cook County prosecutors contend was so drunk she was only semiconscious and unable to give her consent. By the end of the video, the girl lies unconscious as several men write sexual slurs on her body with markers and spit on her, prosecutors have said."

http://www.findarticles.com/p/articles/mi_qn4155/is_200301/ai_n9613509

A teenage "chugging contest" in an upscale home near Burr Ridge turned into rape when a 16-year-old girl passed out and four young men performed sex acts on her--and scrawled offensive words on her body with a marker--while they videotaped their crimes, a Cook County prosecutor said Friday.

The 20-minute videotape is in the hands of prosecutors, and they also have obtained written statements from the four defendants implicating themselves in the attack, said Peter Troy, supervisor of the Cook County state's attorney's office in Bridgeview.

"We believe there were other people who turned the other way while this was going on," said Troy, who wouldn't rule out additional charges. "This is absolutely disgusting."

[Nicholas D Wolfwood]

150. Okay, thanks for posting those NOW.

I still made my comments on what was posted originally, and I still stand by them based on that, just as I've said all along. And also as I've said all along, I'm glad the judge reversed himself. Based on knowing more, clearly he was wrong to originally rule the way he did, but that doesn't change what I said in the context in which it was said.

[WeRQ4U]

115. Judge's don't make decisions based upon public opinion or activism..

At least I would hope not.

They make legal determinations based upon relevant, probative value and potential prejudice. If they are excluding this tape for ANY reason other than those stated in the applicable rules of evidence, and it somehow prejudices one or both sides' case in a material manner, it will cause problems.

[Maddy McCall]

120. And this one reversed his ill decision to one that fits...

with jurisprudence--and he did so only after a Sexual Assault organization's lawyers worked up papers presenting their opposition to the judge's ill-found decision.

Why do you think that this case is so newsworthy? To start with, it's because a judge almost forced a state's witness to do something that the law does not require that she do, and then to punish her!

[WeRQ4U]

127. Do you have this legal precedent?

I want to know where, in relevant case/statutory law, or applicable rules of evidence, you get your citation for this being something "the law does not require that she do." I'm very interested in this.

Because as far as I'm concerned, if there was something material (and this has its own definition) on that tape which would have ANYTHING to do with the credibility of the victim, her truth or honesty under oath, or the relative guilt of the defendant, then it can be shown.

[Maddy McCall]

135. Uh, yeah. The Fourth Amendment, upon which the judge reversed...

his decision. Read the update article.

[WeRQ4U]

138. I read the article.

It reaches no conclusion as to why the judge made his determination, only that he based it upon "special circumstances" afforded rape victims. ("with little elaboration")

I'm sure he still made the same legal determination as required by the rules of evidence.

Edit: To add this. The prosecutor seems to believe that the tape shows something different than what she her previous testimony would show. Well, what if this is true? What if her "recollection" is different than what is shown on the tape? Would you still have a problem with the "victim" watching the tape and being impeached, in front of the jury, while this is showing? If so, why? The alleged victim has no more right to be shielded from scrutiny than her alleged attacker... for this very reason.

You've already made a determination of guilt by establishing the credibility of the victim. But you haven't seen the tape, you haven't heard testimony. There is a possibily that she is either 1) not telling the truth or 2) not "remembering" things as accurately as she claims to.

I'm not saying that this is the case, and I would hope that this wouldn't trigger some "woman hater" response, but if this were the case, and the judge made a determination based on something other than established legal precedent, the appeals court may have somethign to say about it.

[LisaL]

142. Actually, she claims she doesn't remember anything.

Geez. She was passed out from being drunk.
She is not claiming to remebering any details of the attack at al. And in fact, forcing her to watch the tape could make her to "remember" things she doesn't actually remember.
There is no purpose to that whatsoever.

[WeRQ4U]

145. And what's wrong with that, exactly?

You don't think that a witness's memory should be "refreshed" if he/she can't remember something? THat makes no sense...especially if it's about a material element of the case. Otherwise, why would anyone "remember" anything?

You'll have to explain this position to me, because I truly do not understand it. I think I'm missing something here.

[Maddy McCall]

100. Don't you know about the tactics defense attorneys use in rape cases?

Of course he's going to claim that the tape impeaches her testimony. That's to be expected. Forcing her to watch her own rape was a last-bid gamble by the defense to shut down the woman's testimony. For awhile, he had the judge's consent to intimidate her.

The prosecution's description of the tape goes into much more detail...she was not only unconscious, but was spit upon and sexually assaulted while unconscious.

[Nicholas D Wolfwood]

103. Of course I know that's a typical tactic.

And it sucks too.

However, there have been cases where it was completely necessary, and (as I've said a hundred times) being that none of us here on DU knew all of the facts, this could well have been one of those cases.

[Maddy McCall]

108. This was not one of those cases. Please cite others, though.

Please cite others in which it "was completely necessary"--in which forcing an alleged sexual assault victim to watch a video of her own rape inside the courtroom resulted in charges being dismissed against the alleged rapist. I'd like to read about them.

[Nicholas D Wolfwood]

119. Are you even listening?!?

For the LAST time, I said this MIGHT HAVE BEEN! I didn't know and YOU didn't know despite your claims to the contrary unless you had more information than what was presented in this one article.

And I certainly don't have time to do the research on that. You do it yourself if you're so interested. What? Do you think I have an indexed encyclopedia where I can just sift through every rape case that's ever gone to court? Get real.

[Maddy McCall]

122. I'm waiting for you to present those "many other cases."

Since you are using those upon which to base your opinion, please present them.

It's not my job to prove your points in a debate. It's your job. Or else I'll just think that you're talking bullshit, and I've almost arrived at that conclusion.

[Nicholas D Wolfwood]

125. Think whatever you want.

I actually have a job to do and don't have time to sift through nearly infinite court cases.

[Maddy McCall]

128. Well, you've spent most of your afternoon arguing about this.

I thought since you KNOW of "many other cases," and since you've already spent much of the day posting in this thread, you could spend a few more minutes presenting those cases without much trouble to you.

[WeRQ4U]

124. I would imagine that there are instances where that would be necessary.

I think you're hung up on how horrible this may have been for the poor lady, which it would be, and refusing to accept that in order for the Court to fully understand what happened, such a procedure MAY be necessary.

I'm not willing to speculate as to what the facts may or may not have been, or the legal tactics that were employed because I haven't the foggiest clue as to what they were, but I can assure you that if it were relevant and probative to the Defendant's guilt or innocence (and it's prejudice not overwhelming to either party), it could have and perhaps should have been played.

There are specific rules on this. And regardless of whether or not you would LIKE them to be circumvented by "common sense" and a purely emotional "gut check", that's not how these determinations are made.

[Radical Activist]

86. Isn't her emotional discomfort more important than

determining if a man is guilty before sending him to prison? If you disagree you're sexist and hate women!!!
:sarcasm:

[LisaL]

96. How about she testifies to what she knows, not what she

sees on the tape? That's how most victims testify, in case you haven't noticed.
Geez. If you demand tapes with every trial, then very few crimes are going to be prosecuted. She remembers what she remembers, and having her to view the tape would only mess up her memory of the event.

[Radical Activist]

112. How could a tape

mess with her memory? I can only see that happening if what she remembers is different than what actually happened, which would make answering questions about the tape very important.

[LisaL]

141. She doesn't remember the attack-

if she sees it on tape-what is she going to be testifying to-an attack or what she saw on tape?

[realisticphish]

25. One question

does he have any legal standing? We can say, "that's fuckd up" all we want, but if that's the way the law works, than so be it. It's still fucked up, but I would understand that the judge had to do it. But I don't know enough about the law to say

[Maddy McCall]

32. Do child porn and molestation victims have to watch videos of...

their own rapes?

Did the victims in the Abu Grhaib abuse cases have to watch videos of their abuse for the perpetrators to be charged?

No, this case is sadistic in that it's victimizing this young woman yet again. This is the judge's whim, not mandated by state or federal law.

[realisticphish]

44. Well, that's what I'm saying

I don't know the facts, and that's what I was asking. Thanks

[AngryAmish]

54. If the judge does not allow it the case will be reversed on appeal

And she will have to testify again on retrial or the state could drop the case.

[Maddy McCall]

60. Not necessarily.

It will be appealed--it always is--but it won't necessarily be reversed on appeal.

[LisaL]

88. Why?

Normally victims have to testify on what they remember had happened to them.
Saying she has to view the tape would indicate that unless such a tape exist, and victim views it and testifies to it, there can be no rape trial? Well, excuse me, not every crime is videotaped.

[AngryAmish]

107. From what I understand it was to be used as impeachment.

[Maddy McCall]

111. But, since the latest revelations, you should understand that it was...

to be used as intimidation.

Of course, that should have been obvious to you from the beginning.

[AngryAmish]

goodbye

[LostinVA]

99. Of course not -- but, those are innocent kids, not a drunk slut

Because, you KNOW she asked for this. It was her fault. Skank.

:sarcasm:

[darmok167]

43. Just a quick note from the full story...

...there were 4 people accused. 1 of them was convicted of taping the incident...it didn't specify what he pled guilty to, though, and another accused was tried and acquited.

[Maddy McCall]

45. And that's important why?

Is there not significance, too, that both alleged rapists weren't tried at the same time?

Is there relevance that two of the alledged perpetrators FLED?

[darmok167]

51. I don't know.

I'm not saying she is lying and I'm not saying the guy on trial didn't do it, I was just commenting that one guy had been acquited of the same charge. If the tape was in evidence in the first trial there may have been something on it that led to the acquital. I don't know.

I know nothing about how the legal system works, but my guess might be if the tape shows her moving or talking the defense would want to show her the tape of her moving and talking and ask her to explain it since she has testified she was passed out. If she never witnessed herself doing it, I'm not sure how she could answer the question.

I'm just trying to look at it from a completely outside perspective where she is not yet a victim because it hasn't been proven. The defendant is, afterall, innocent until proven guilty.

[Maddy McCall]

62. I'll be watching this case, and we'll see what the jury says.

I'll post the verdict as soon as I hear about it.

I'm not saying the guy is guilty. I'm not saying that it wasn't consensual.

I am saying that to force an alleged rape victim to watch a video of her alleged rape is just another form of victimization, and it appears, after consideration, the judge agrees.

[darmok167]

72. I'll concede that and I agree

....but at the same time, not knowing what was on the tape, if the tape exhonerated the defendant, then she wouldn't be forced to relive a rape because no rape took place in the first place.

Like I said, I don't know. It was probably a good decision by the judge to back down. Better to err on the side of caution.

[LisaL]

90. If the tape exonerated the defendant, why on Earth would this

go on trial?
Obviously it does not.

[WeRQ4U]

109. It is not always that cut and dry.

It may not explictly exhonerate the defendant, but it may show something beneficial to the defense, however scant. You never know.

I'm sure the judge made the same inquiry that they must always make when determining whether the allow otherwise relevant evidence...whether it's probative value is outweighed by its prejudicial nature, whether ti may cause undue delay, the fact that it's cummulative etc. They make these determinations all the time.

[LostinVA]

95. Check you facts -- he was acquitted because he was not shown on tape rapin

I love, love, LOVE how these threads bring out all this hidden nastiness on DU.

[LisaL]

97. That guy wasn't on tape raping her.

[darmok167]

126. Please note: at the time of my earlier post...

...the full information was not yet available only the original article. The information about what was and what was not on the tape was unknown. My facts at the time were correct and when the new info came out I conceded.

[Maddy McCall]

50. UPDATE: JUDGE BACKS DOWN, WOMAN DOESN'T HAVE TO WATCH.

Alleged rape victim won’t have to view tape

Tribune staff reports
Published March 1, 2006, 1:03 PM CST


A Cook County judge today backed off from his threat to send a woman to jail if she refused to view a videotape of her alleged rape, CLTV reported.

Judge Kerry Kennedy ruled the witness can continue her testimony without viewing the tape, CLTV reported. He also refused a defense request to dismiss the charges against the suburban man accused of sexually assaulting her.

On Tuesday, Kennedy had said he would hold the woman in contempt of court if she would not view the tape when the trial resumed today, prompting a lawyer for the defense to request that the case be dismissed.

The judge's action angered victims' rights advocates, and a group of lawyers worked overnight to prepare an argument to present to the judge this morning, according to Lyn Schollett, general counsel for the Springfield-based Illinois Coalition Against Sexual Assault.

"The court cannot knowingly inflict this kind of distress on a victim," Schollett said.

She said the group of attorneys argued in a legal pleading that making the woman watch the tape was an invasion of privacy under Illinois law and irrelevant to the case.

More at:

http://www.chicagotribune.com/news/custom/newsroom/chi-060301missbrennertrial,1,7979722.story?coll=chi-news-hed

(free log in required)

[darmok167]

57. sounds to me like this will end up in appeals court if he's convicted n/t

.

[Maddy McCall]

59. It always does.

So what?

[LostinVA]

98. No grounds for appeal -- and this is not any setting-precedent ruling

It was a bad ruling, the judge realized that. I actually think the plaintiff could have appealed on this issue, not the defendant. There is NO rationale reason for the girl to watch the tape. Makes no sense.

[AngryAmish]

58. Well that is good

If the judge has decided that the tape is not impeaching then there is no need for this.

[barb162]

117. good move by the judge

why can't the lawyers and judge watch the film and decide if it was /wasn't a rape. If they all agree it was a rape, then it's a rape. If they disagree then let a jury watch it. Why does the girl have to watch it

[Maddy McCall]

129. If the tape showed exhonorating evidence, the state would already...

have dismissed charges against the defendant.

They jury absolutely should watch it. The state's witness does NOT have to be present while the jury watches.

[barb162]

132. thank you Maddy!

I can't imagine if it were me or any other woman, any of us could handle it without further major trauma

[fishwax]

154. no way, the jury absolutely has to watch it

if it's pertinent evidence. Juries (and not judges and lawyers) decide guilt or innocence (which can include whether or not a crime was committed).

But just because the jury has to see it doesn't mean the victim has to suffer through viewing it. If the tape impeaches her, let the tape impeach her.

It seems that often times in rape cases the victims are often intimidated or traumatized to the point they can't testify (or can't testify effectively) resulting in acquittal, and this seems to me another manifestation of that tactic. I'm glad the judge backed off his earlier decision.

[In_The_Wind]

75. That Is Absurd!

[Benfea]

76. Naperville sucks.

This part of the Chicago suburbs is full of upper middle class Republican idiots all of whom have an overdeveloped sense of entitlement and the firm belief they can do whatever the hell they want and get away with it. I hope those dumb ass punks get put away for good, but the chances of that happening even if they are convicted is slim to none. At most they'll get a couple years at a minimum security "Club Fed" and time off for "good behavior."

Rape is only a serious crime if a poor person does it.

[AngryAmish]

81. Trial is in Cook County

Crime took place in Burr Ridge, if I recall.

[barb162]

118. Brookfield (2), Lyons (1) and the last kid Burr Ridge I believe

Missbrenner fled to Serbia for eight months while free on bail and awaiting trial. He returned to the United States in May, shortly after one of his alleged accomplices, Christopher Robbins, 21, of Brookfield, was acquitted of all charges in the case.

A third man, Sonny Smith, 21, of Brookfield, pleaded guilty to videotaping the incident and served time in a state-run boot camp program.

The fourth suspect, Burim Bezeri, 20, of Lyons, reportedly fled to Albania after being freed on bail. He remains at large.

[barb162]

114. the boys were from other suburbs, I believe

[hobo_baggins]

133. I'm really torn about this...

not having seen the video im not sure if i can weigh in on the issue....

I mean, i can definately understand the outrage at having the victim watch a video of her own rape...but at the same time...not having seen the tape, if there is something on it that might prove that the accused are innocent, then maybe watching it and answering the questions is a good idea...

But, if she won't watch it, and theres something on there that proves their innocence, then they should go free...

[Maddy McCall]

137. No one's arguing that the jury shouldn't see the tape!

Let the jury watch the tape, but don't force the state's witness (rape victim) to have to sit there while they watch it.

[hobo_baggins]

146. yeah, i say its up to the witness if she wants to see the tape

if there is evidence there that she chooses not to refute, thats her problem...but she shouldn't ever be forced to watch it

[Bucky]

139. We lack so much info on this. For instance...

Even after reading the article, I really don't understand this woman's decision not to testify. I understand her reluctance, sure, but not her ultimate decision to risk letting these scum go free. We also don't know if she's clearly unconscious in the video (which is categorically rape) or just groggy to the point of impaired judgment--a state that may not be clearly explicable from a video tape. In either case she was underage at the time of the crime and at the very least you have a solid statuatory rape case against the lot of them.

The base facts are indisputable, of course. She has a right to pass out drunk at a party without being forced into having sex. But I think we'd need to get a LOT more facts before drawing conclusions.

[LisaL]

140. She is not refusing to testify. She is refusing to watch the tape.

A big difference.

[Maddy McCall]

147. Um, no we don't. We know that she has already testified.

Read the many links in this thread.

[LisaL]

148. Exactly. If she refused to testify, there would be no trial.

[Maddy McCall]

144. UPDATE 2: GOVERNOR PROPOSES LEGISLATION RE: RAPE/VIDEOTAPES

SPRINGFIELD – Governor Rod R. Blagojevich announced today that he would introduce legislation to prevent rape victims from having to view videotape of their assaults. The Governor’s announcement follows learning about the case of a Naperville woman who was nearly forced by the courts to view a videotape of her rape four years ago. Cook County judge Kerry Kennedy ruled today that the woman can continue her testimony during the trial of one of the men accused of her rape without viewing the tape.

“Judge Kennedy made the right decision when he ruled that the woman who was raped will not have to watch the video of her own rape. But it came too close. A victim of rape should never be forced to re-live the experience. The very idea of it is cruel. That’s why I have asked my policy and legal team to craft legislation that prohibits the courts from forcing a rape victim to watch or re-live the experience of her rape in court. This issue is simply too important to leave to a subjective decision on a case-by-case basis. Our lawyers are currently examining the Illinois Criminal Code. We will introduce legislation to amend the code because the very idea of subjecting a rape victim to something like this is appalling,” said Gov. Blagojevich.

On Tuesday, Judge Kennedy threatened to hold the victim in contempt of court if she refused to view the videotape. Attorneys argued this morning that forcing the woman to view the tape amounted to invasion of privacy under Illinois law and is irrelevant to the case.

The woman was 16 years old when she was assaulted and videotaped four years ago at a Burr Ridge home. The trial began Tuesday for one of the men accused in her assault. 20-year-old Adrian Missbrenner faces aggravated criminal assault and child pornography charges. According to published reports, three other men have been charged in connection with her assault. Burim Berezi of Brookfield fled the country after being charged and remains at large, 20-year-old Sonny Smith of Brookfield pleaded guilty to child pornography, and Christopher Robbins of Brookfield was acquitted of sex charges in March 2005.

Edit to add link: http://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=1&RecNum=4686

[Pithlet]

149. A reminder, please keep articles quoted to 4 paragraphs or less.

Per the rules:

5. Copyrights: Do not copy-and-paste entire articles onto this discussion forum. When referencing copyrighted work, post a short excerpt (not exceeding 4 paragraphs) with a link back to the original.

[Redstone]

151. The judge backed off. It was in the newspaper this morning.

Redstone

[Misunderestimator]

153. Good news! Thanks for the update.

It's appalling that anyone would think this was a good idea.

[philosophie_en_rose]

152. The Defense is being lazy ass bastards.

I realize that the judge reversed his decision about forcing the victim to watch the rape (a good thing). However, the defense really has no excuse for its behavior.

If the victim doesn't remember the rape, then exposing her to the tape will only taint the stream of memory. Suddenly, she does remember your client's watch or some other detail. Not good.

If there is a part of the tape that can be used to impeach the witness, why not show a brief clip or a censored version that focuses solely on facial expression or whatever the hell the defense is trying to use?

Forcing the victim to view the tape is reprehensible.

[sasquatch]

155. Eureka, Matcom has found it, the ultimate flame war thread

:applause::thumbsup:
You've joined a class of flame war starter that me and John Kleeb are members.