Judge in sex assault case sued by alleged victim

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BY CLARENCE MABIN / Lincoln Journal Star

In the latest legal twist in the sexual assault prosecution of a Lincoln man, the woman at the center of the case sued the trial judge this week because he barred “rape” and other words from the courtroom.

Tory Bowen, 24, said in the complaint filed in federal court that Lancaster County District Judge Jeffre Cheuvront violated her First Amendment right to free speech by barring the words “rape,” “victim,” “assailant,” “sexual assault kit” and “sexual assault nurse examiner” from the trial of Pamir Safi.

She is seeking a declaration from a federal judge that Cheuvront’s word ban was contrary to the U.S. Constitution.

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Laura Antonuccio (right) and Linsey Marshall (left) stand in protest to the language ban in the trial of Pamir Safi on July 17. (LJS File)

Laura Antonuccio (right) and Linsey Marshall (left) stand in protest to the language ban in the trial of Pamir Safi on July 17. (LJS File)

The Lancaster County Attorney’s Office has charged Safi, 34, with first-degree sexual assault stemming from an encounter between Bowen and Safi at his apartment the morning of Oct. 31, 2004.

Safi said he and Bowen, who met each other for the first time at a downtown Lincoln bar the night before, had consensual sex.

Bowen, a former University of Nebraska-Lincoln student who now lives in Washington, D.C., and prosecutors say she was too intoxicated to give consent.

The case went to trial last year, but Cheuvront declared a mistrial Nov. 6 after the jury deadlocked 7-5. He declared a second mistrial in July during jury selection, this time citing intense news coverage and public protests on behalf of Bowen.

Cheuvront issued the so-called language order in both trials. The judge explained at a hearing in July he was concerned that Safi’s constitutional right to a fair trial might be jeopardized if witnesses were permitted to use the banned words in their testimony.

Wendy Murphy, Bowen’s private attorney, said language orders like the one issued by Cheuvront have become increasingly common in state courtrooms nationwide — a troubling trend that needs to be addressed by the federal judiciary.

Murphy, a Boston law professor, filed the lawsuit Thursday in U.S. District Court in Lincoln.

“It’s a problem because it’s occurring with such frequency,” she said. “(But) no federal court has spoken on the issue, at least to my knowledge.”

Murphy said witnesses do not have an unlimited right to free speech in the courtroom. But neither do judges have an unlimited right to impose restrictions on the language used by witnesses, she said.

“This case raises the question, where do you draw the line,” she said. “Where’s the balance between the rights of citizens and” the due process rights of defendants?

Cheuvront could not be reached for comment.

But a skeptical Richard Collin Mangrum, who teaches at Creighton University Law School in Omaha, characterized the complaint as odd and said he doubted its chances for success before a federal judge.

“It’s unusual for a lot of reasons — I don’t know where to begin,” he said.

Judges, he said, have to guard defendants’ right to a fair trial. That often means keeping out unduly prejudicial testimony or evidence, he said.

“The courtroom is not a public forum,” he said. “To suppose that (people) have an absolute right to free speech is an odd theory.”

Unless Bowen can show the judge acted out of vindictiveness, Mangrum said, her claim is unlikely to succeed.

He said Cheuvront might have banned witnesses from using the word “rape” because it implied a legal conclusion. He called the judge’s banning the words “sexual assault kit” and “sexual assault nurse examiner” unusual, because they are factual descriptions.

“The judge’s order, I think it’s unusual,” he said. “But to say it’s an abuse of judicial discretion, that’s (more) unusual.”

Mangrum said Cheuvront probably would be protected from the lawsuit by judicial and government immunity.

But Murphy said the immunity only applies when a plaintiff is seeking monetary damages.

Reach Clarence Mabin at 473-7234 or cmabin@journalstar.com.