Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

 the court did NOT uphold the ban -- it ruled the case was moot because the 
prosecutor opted not to retry safi a third time after the first two mistrials 
(while our appeal was pending)

we are appealing to an en banc panel of the 8th circuit because whether the 
order that WOULD have applied at the third trial is moot or not, the fact 
remains that the order commanding the victim to use and not uses certain 
words during the first trial has already caused substantive harm to the 
victim's constitutional rights, and is not only not moot -- the injury has 
ended - and her 1983 claim is essentially an appeal of that order -- thus is 
clearly not moot - 

we will be arguing that it is not moot AND is worthy of judicial review 
because there is no other avenue via which her harm can be redressed - 
contrary to the decision of the fed dist judge that her ONLY option was to 
refuse to obey the court's order in the middle of trial -- and then be held 
in contempt - go to jail - and file an appeal from that adjudication.

this option -- contempt in the middle of trial -- is not constitutional -- 
thus, our appeal will emphasize that the only opportunity for judicial review 
is a 1983 action post-trial because it violates due process to say a citizen 
has no means of redress for a violation of their 1dt amendment rights.

the 8th circuit did not address any substantive issues re the propriety of 
language bans -- nor did the court even reach the issue of whether the 
federal court had jurisdiction to hear the merits (the fed dist judge ruled 
the case was improperly filed in federal court under younger abstention -- 
but that ruling was clearly incorrect, which is why we filed an appeal - and 
obviously, the 8th circuit agreed with us or they would have upheld the 
ruling below under abstention - which they could not do -- so they dumped it 
under mootness  - and again -- they didn't HAVE to ignore the case under 
mootness because the issue is highly likely to recur yet evade review - an 
issue we addressed amply in our brief )

and remember the most important point - 

the fed dist judge wrote in a footnote that a state court judge's order 
commanding a victim not to use (or TO use) certain words during trial is 
"profoundly disturbing".  In a footnote, the federal judge wrote that such 
orders are reminiscent of the types of things we hear about from countries 
where women wear burqas --

so please use the federal district judge's footnote as strong evidence that 
language orders are unconstitutional -- and cite it to your judges if they 
try such silliness in your cases - 

wendy murphy




 


 

-----Original Message-----
From: Juliette Grimmett 
<>
To: 
;
 
;
 

Sent: Sun, 6 Apr 2008 12:08 pm
Subject: APRI VAWP Appeals court upholds court's word ban






















    

            
http://hosted.ap.org/dynamic/stories/C/CENSORED_TRIAL?SITE=VANOV&SECTION=HOME&TEMPLATE=DEFAULT

Apr 3, 5:32 PM EDT



Appeals court upholds court's word ban



By MARGERY A. GIBBS

Associated Press Writer



OMAHA, Neb. (AP) -- An appeals court on Thursday upheld the dismissal of

a lawsuit against a judge who banned "rape" and other words in a sexual

assault trial.



The lawsuit argued that Lancaster County District Judge Jeffre Cheuvront

violated Tory Bowen's constitutional rights in barring her from using

certain words during her testimony in the trial, in which she said Pamir

Safi sexually assaulted her.



While Cheuvront barred Bowen from using phrases and words like "rape

kit" and "victim" in her testimony, he allowed Safi's attorneys to use

words such as "sex" and "intercourse" when describing the encounter

between Safi and Bowen.



The Associated Press usually does not identify accusers in sexual

assault cases, but Bowen has allowed her name to be used publicly.



A mistrial was declared in Safi's first trial when the jury deadlocked.

His second trial failed to advance beyond jury selection when Cheuvront

declared a mistrial, citing news coverage and public protests on Bowen's

behalf.



A panel of three judges on the 8th U.S. Circuit Court of Appeals said

that the federal court didn't have jurisdiction in the case.



Bowen's attorney, Wendy Murphy of Boston, said she "wasn't surprised

that the court found a procedural out." She said Bowen will appeal to

the full court, then to the U.S. Supreme Court if necessary.



A court staffer who answered the phone at Cheuvront's office said it

would be improper for the judge to comment on the opinion.

© 2008 The Associated Press.





    
  

    
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