No third trial in disputed rape case

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By CLARENCE MABIN / Lincoln Journal Star

Lancaster County Attorney Gary Lacey said he believes a former University of Nebraska-Lincoln student’s claim that she was raped.

But proving that claim to a jury beyond a reasonable doubt, he said Friday, is a different matter.

“I feel very sorry for Tory,” Lacey said, referring to Tory Bowen, the former UNL student who says she was sexually assaulted in 2004.

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Pamir Safi

Pamir Safi

“The fact that her case is not being prosecuted does not mean I think it (a sexual assault) didn’t happen. I just think that given the totality of the circumstances, that I can’t prove it to 12 jurors beyond a reasonable doubt.”

In a motion Friday morning, Lacey asked Lancaster County District Judge Jeffre Cheuvront to dismiss the criminal prosecution against Bowen’s accused attacker, Pamir Safi, 34, of Lincoln. Lacey said in a news release the motion was precipitated by Cheuvront’s decision in May to not allow testimony from two other women who had made similar claims against Safi.

The motion to dismiss was filed “without prejudice,” a legal term meaning the charge could be refiled.

 The judge granted Lacey’s motion in an order later Friday morning, marking an end to another chapter in a case that garnered national attention.

Bowen on Friday received cold comfort from Lacey’s remark that he believed her claim.

“I’m between emotions of incredible anger and sadness,” said Bowen, who lives in Washington, D.C. “I never thought it would end this way. I feel the justice system has failed me.”

She said Lacey told her of his decision Thursday in a telephone conversation that also included the two deputy county attorneys prosecuting the case.

Safi, 34, had been scheduled to go to trial — for a third time — beginning Feb. 19.

Prosecutors say Safi had sex with Bowen in his Lincoln apartment knowing that she was too intoxicated to give consent. Safi has said Bowen consented to have sex with him.

The first trial ended in November 2006 with a deadlocked jury. Cheuvront declared a second mistrial last July, after he decided that public protests outside the Hall of Justice in support of Bowen had tainted the jury pool.

Protesters, including members of a Chicago-based advocacy group, were drawn to the courthouse angered at an order from Cheuvront that barred witnesses from using “rape,” “sexual assault nurse examiner” and other words at the trial.

Cheuvront referred to concerns about Safi’s right to a fair trial and a state law that enables judges to bar from trials language that could be unfairly prejudicial to defendants. The judge said in a follow-up order after the second mistrial that witnesses could use the phrase “sexual assault.”

Cheuvront’s language order prompted Wendy Murphy, a nationally known Boston law professor, to file papers in federal court in Lincoln seeking a declaration that the judge had violated Bowen’s rights to free speech and due process.

U.S. District Judge Richard Kopf in September dismissed the complaint, citing a U.S. Supreme Court ruling that limited federal court involvement in criminal cases pending in state courts.

Kopf said in a footnote in the dismissal order that he could not understand why a judge would forbid an alleged sexual assault victim from using the word “rape.” But Kopf also wrote that he had never sat as a judge in a sexual assault case.

Murphy has appealed the dismissal to the 8th U.S. Circuit Court of Appeals in St. Louis.

She said Friday that Lacey’s decision to not prosecute the case “makes no sense.”

The prosecutor knew months before both the second trial date in July and the upcoming trial date that Cheuvront had decided to bar testimony from the two women who claimed they were assaulted by Safi, Murphy said.

So why is he deciding now, she asked, that he could not prove  the charge against Safi?

Murphy said she was troubled that Lacey may have decided that Bowen’s own testimony was not enough to get a conviction.

“It’s like he’s saying, ‘All we have is your word, and that’s not good enough,’” Murphy said.

“The people of Nebraska should be very concerned (with) a prosecutor who won’t take on a case where all he has is the word of a woman.”

Murphy said Cheuvront’s language order could have played a role in Lacey’s decision. She said an 8th Circuit reversal of Kopf’s ruling could prompt the prosecutor to refile the criminal charge against Safi.

“There’s no question they think it (the language order) affected the case,” she said.

Lacey, asked what role the language order played in his decision to seek the dismissal, said, “None at all, none at all.”

The testimony of the other two women — one of Kansas City, the other formerly of Ft. Riley, Kan. — was crucial, he said.

Cheuvront had allowed their testimony in the first trial, but reversed that decision before the second trial. The judge said in the May 1 order that the women’s testimony at the first trial was “substantially different” from statements they made at an earlier pre-trial hearing.

Lacey said Friday that Safi’s attorney, Clarence Mock, effectively undermined Bowen’s testimony at the first trial. In a retrial, Mock could have cited that testimony, without indicating to jurors it came in an earlier trial.

Mock could not be reached Friday.

Lacey also defended the timing of his decision to seek the dismissal.

“I make my decision when I make my decision,” he said.

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