Words you can't say in rape trial at issue

Lee Enterprises

LINCOLN - A judge Wednesday said he would not order the woman at the center of a sexual assault case to agree in writing to a ban on the use of certain words and phrases at the trial.

But Lancaster County District Judge Jeffre Cheuvront warned Tory Bowen at a pretrial hearing he would show little tolerance if she uttered the forbidden language on the witness stand.

The judge's comments came during a hearing on two motions, including one from defense attorneys asking Cheuvront to strike Bowen as a trial witness because of her earlier stated refusal to sign the language order.

After receiving testimony from Bowen Wednesday, Cheuvront said he was inclined to overrule both motions. He added: “I'm also inclined to not be very liberal over violations (of the language order). I'm also not going to get into a fuss over if it (a violation) was deliberate or not.”

Jury selection began Monday in Lancaster County District Court in the trial of Pamir Safi, who is charged with sexually assaulting the then-21-year-old Bowen on Oct. 31, 2004.

The trial will be Safi's second on the charge. The initial trial ended in a hung jury in November.

Safi, 33, has not denied he and Bowen had sex, but he contends it was consensual. The Lancaster County Attorney's Office alleges Bowen was too intoxicated to give consent and Safi knew that.

Cheuvront, in an order last week, asked witnesses in the second trial to acknowledge an earlier order barring certain language from the trial. That language included the words “victim,” “assailant,” “rape,” “sexual assault kit” and “sexual assault nurse.”

Cheuvront allowed the phrase “sexual examination kit” but limited any references to the sexual assault nurse examiner only as someone with special training in “sexual examinations.”

Inadvertent use of the language would not result in sanctions, the judge said. Intentional violations could result in a jail sentence or other sanctions, however.

The order was similar to one imposed by the judge before the first trial.

After Cheuvront instituted the language order for the new trial, Bowen indicated directly or through one of her private attorneys that she would not sign papers acknowledging the ban.

Bowen has said the order - in conjunction with another order from Cheuvront that allows Safi's attorneys to use words such as “sex” and “intercourse” to describe the October 2004 incident - would force her to commit perjury and damage her credibility on the witness stand.

Her refusal to sign the acknowledgement prompted defense attorney Clarence Mock to file the motion Wednesday asking Cheuvront to strike Bowen's testimony.

Asked by Deputy Lancaster County Attorney Pat Condon if she would be willing to abide by the order without signing it, Bowen answered, “No, sir.”

Condon then asked if she could guarantee she would not use any of the banned words.

Answered Bowen: “I wish to testify. I do not wish to commit perjury.”

Later, during questioning by Cheuvront, Bowen suggested she would attempt to comply with the ban but said she could not be sure what she might say in the trial.

“It is possible that I might violate the order under the extreme emotional pressure,” she said.

When the judge told her that accidental uses of the words would not be sanctioned, Bowen said she was unsure what he meant by “accidental.”

Said Cheuvront: “I can ask my bailiff to go get a dictionary.”

Later Cheuvront asked, “So, you're telling me there's no chance you'll follow the order of the court?”

Bowen said: “I will try to follow the rules, but I can't guarantee it. I will do my best to not violate the order. I don't want to risk losing this case.”

Mock has said he would either seek a mistrial or move to strike her testimony if Bowen violated the order. In closing comments Wednesday, he urged Cheuvront to strike her testimony before the trial.

“She has announced her intentions to not abide by this order,” he said.

Mock referred to the repeated violations of the ban at the first trial by Bowen and two of her sorority sisters who testified for the state.

“I think the motion should be granted to spare the taxpayers and Mr. Safi” the cost of another trial, he said.

Cheuvront also referred to the repeated violations at the first trial and said his request that witnesses sign the language order - which he conceded was unusual - was an attempt to stop those violations from happening again.

Describing himself as “a simple country judge,” Cheuvront said he did not think the order, under the circumstances, was extreme.

“I've always considered myself someone who doesn't go very far” as a judge, he said.

In an interview earlier this week, the jury forewoman at the first trial said the language ban played no role in the outcome. Cheryl Larson was among five jurors who were leaning toward or were in favor of acquittal.

“The order did not play a factor,” said Larson, who favored acquittal.

In other developments,Cheuvront said he was inclined to deny a motion by Lincoln attorney Sue Ellen Wall to reconsider his decision earlier Wednesday to strike a request that would have stayed any contempt finding against Bowen until the language order could be reviewed by the Nebraska Supreme Court.

The Nebraska Supreme Court refused to hear an appeal of the order filed by Wendy Murphy, a Boston law professor, on behalf of Bowen, based on the fact Murphy is not licensed to practice in Nebraska. The appeal reportedly will be refiled by a Nebraska-based attorney.