The Post asked two sports lawyers their opinion about the Derrick Rose case. Daniel Werly believes Rose’s rape accuser will have a tough time proving her case. Daniel Wallach, however, says Rose’s testimony may not play well with the jury.
Despite all the wild drama of the first three days of trial — from the accuser’s uncontrollable crying to Derrick Rose showing up late for court — the outcome of the case will ultimately hinge on the answer to a single question:
Will a predominately female jury believe that a severely intoxicated woman could have legally consented to having sex with Rose and two of his friends?
The first week offered several takeaways that strengthen his accuser’s position.
First, the jury. This is where Rose’s accuser, who is Mexican-American, may have caught her biggest break. The jury pool consisted predominantly of people with Hispanic surnames and only two African-Americans. The six-woman, two-man jury — comprising mothers, daughters and fathers of daughters — presents a unique challenge to Rose, who is black. The slut-shaming tactics employed by his trial team could backfire in a major way with this jury.
Second, the accuser was severely intoxicated. She consumed a significant amount of alcohol on the night in question.
Rose and his co-defendants also knew or at least had reason to know — a key factor under California consent law — that the accuser was inebriated. The limo Rose sent to pick up her contained a small bottle of wine, which she downed, and one of the co-defendants gave her tequila at Rose’s residence. The woman blacked out at Rose’s home, suggesting an advanced state of inebriation.
Third, key to Rose’s belief that the woman consented was their pre-existing relationship. Rose testified that he had a casual sexual relationship with her spanning several years. But he acknowledged that the last time they had sex was months earlier, a long time for one to claim she would then readily opt for group sex months later.
Lastly, Rose testified that he removed a used condom from her home when he left. This was a highly unusual action and reasonably suggests Rose was trying to destroy any evidence of “unconsented-to” sex.
Predicting an outcome so early in the trial is always a hazardous endeavor. But so far, I believe that the woman has the upper hand.
Daniel Wallach is a top sports lawyer whose clients include professional teams. He can be found on Twitter at @WALLACHLEGAL.