(Photo Credit: NY Post)
We have all read the stories and seen the pictures. However, what is going on behind the scenes?
Every potential criminal case begins the same way: The initial complaint. The initial complaint is where the alleged victim makes statement(s) to law enforcement regarding the potential criminal liability of another person. The exception being if the alleged victim is deceased.
In over three years as prosecutor, I prosecuted violent crimes, drug crimes, white collar crimes, and sex crimes. I interviewed thousands of potential victims/witnesses. The goal of every one of those interviews was to get to one thing: The Truth. How does the Pasadena Police Department and (if necessary) the Los Angeles County District Attorney’s Office get to that? Facts. Remember this saying with any criminal case, facts win cases. However, the criminal case against Mr. Bauer has not filed yet and as such this case is still a civil matter with an independent criminal investigation.
This article is the first in a series of articles that will be written case of Trevor Andrew Bauer develops. These articles will explain what happens before a case is filed (with the likely reasons why it was filed), preparing for a domestic violence trial (what goes into it, what challenges will the prosecution likely face), and finally the resolution of the case (whether it be a trial with a verdict, a plea, or a dismissal).
Facts as we know them to be:
According to reports, on or about April 21, 2021, Trevor Bauer was messaging with a woman from Instagram. That woman stated that she drove from her home in San Diego to Mr. Bauer’s home in Pasadena. They talked for a bit then engaged in sexual relations. Mr. Bauer asked if the woman had ever been choked before and she stated that she had. She stated that she had previously engaged in sexual relations where the other individual applied light pressure to her neck. However, the woman stated that Mr. Bauer put his fingers down her throat in an aggressive manner and she asked him to stop. Mr. Bauer stopped for a moment. He then allegedly wrapped the alleged victim’s hair around her neck and caused her to lose consciousness.
The woman allegedly woke up to find Mr. Bauer having anal sex with her. She used the bathroom after the encounter where she realized she was bleeding from her anus and was barely able to walk. However, it is her contention that she did not believe Mr. Bauer to be a threat to her. She stated in her official statement for her restraining order that she never wanted anal sex nor did she ever consent to it. Mr. Bauer allegedly texted, “You feeling a little sore this morning?” in a joking manner. Mr. Bauer and the woman continued to communicate via text and Instagram for the next several weeks. The communications allegedly were about baseball, the woman’s new job, and they also communicated in a sexual nature.
On or about May 15, 2021,Mr. Bauer allegedly invited the woman over to his house again and this time they agreed to use a “safe word”. For those who are unaware, a “safe word” is an agreed upon word by a couple engaging in sexual relations where both parties agreed to cease the activity if the other utters the safe word. As stated by the woman, about five minutes into sexual relations, Mr. Bauer began to choke her again and she lost consciousness as well as her ability to speak. When she awoke, Mr. Bauer was allegedly punching her in the head. Mr. Bauer allegedly then flipped the woman onto her stomach and again choked her with her own hair which again caused her to lose consciousness. The day after the second incident, the woman claimed to have sought treatment for her injuries from the Alvarado Hospital Medical Center in San Diego on May 16, 2021.
As a result of the second incident, the woman reportedly had two black eyes, a bloodied swollen lip, significant bruising and scratching to one side of her face. The woman was allegedly diagnosed with an acute head injury and assault by manual strangulation. Mr. Bauer reportedly attempted to contact the woman on numerous occasions and finally spoke to the woman on the phone with police present. This call is what is called a “controlled call”. A “controlled call” is a call where law enforcement has the victim call the alleged offender and get them to make admissions. That is because, those statements by the Defendant are not hearsay and thus admissible in Court. Additionally, those statements could be testified to by multiple law enforcement officers to corroborate what the victim likely stated in her testimony. The reason is that law enforcement is almost always listening to the exchanges between the two parties and may record the call depending on the wiretapping statute for that particular state. In that call, the woman alleged asked Mr. Bauer, “What did you do to me when I was unconscious?” Mr. Bauer reportedly admitted to punching the woman in the buttocks and when the woman tried to explain to Mr. Bauer that she did not consent to that, he attempted to change the conversation. The Athletic first reported details from the restraining order.
Where is the case currently at?
The woman currently has been granted a temporary restraining order or “TRO”. However, the woman and Mr. Bauer will reportedly have a court hearing on the woman’s motion for a permanent restraining order that is set to begin on August 16, 2021. The expectation is that the hearing while last until August 19, 2021. These restraining order hearings are mini-trials. The woman will take the stand and explain to the judge why the Judge should grant her restraining order.
Under California’s Domestic Violence Prevention Act (DVPA), a Court may issue a restraining order to prevent domestic violence or abuse if the party seeking the order “shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. “Abuse includes intentionally or recklessly causing or attempting to cause bodily injury to, attacking, striking, stalking, threatening, harassing, making annoying telephone calls to, or disturbing the peace of the other party.” Thus, the Judge would have to find that the woman showed, to the satisfaction of the Court, that Mr. Bauer previously abused this woman.
In these hearings, the Petitioner’s attorneys (the woman’s attorneys) have the power to call Mr. Bauer to the stand to testify. Mr. Bauer, if called to testify, has two options. One is that he must answer the Plaintiff’s attorney(s) questions truthfully. The second option is that he could invoke his right against self-incrimination and choose not to answer any question that may incriminate himself. Mr. Bauer might have the urge to try to tell his side of the story. However, it is likely that his attorneys will advise him to respond to every question with a, “On the advice of counsel, I am invoking my right against self-incrimination”.
Under the United States Constitution, Mr. Bauer never has to be a witness against himself. His attorneys’ advice might be something similar to this, “This hearing isn’t the whole ballgame. You aren’t ever going to see this woman socially again. If we lose this hearing, it is not the end of the world. This hearing is a long way from a conviction for anything. Invoke your right against self-incrimination. Sure, the decision of the Court will eventually become public and the transcript will eventually find its way to a reporter who will write that you invoked your constitutional right against self-incrimination. Some people might assume you are guilty because you invoked. However, it is your best course of action.
I advise you to invoke because this hearing is being recorded. Either the audio is being recorded or a court-reporter is taking down every word you say. Either way, if criminal investigation yields charges for sexual assault and the case ends up going to trial, I can promise you that you don’t want your own words being used against in an aggravated sexual battery trial.” That being said, his attorneys could get aggressive with this matter. That is because they are aware that the Los Angeles District Attorney’s Office will be monitoring this hearing exceptionally closely. This hearing essentially allows the case (as it is currently developed) to be heard by a judge. Law enforcement and potentially the woman’s doctor might testify on her behalf. The hearing will also be likely be the first time that the woman faces questioning from Mr. Bauer’s attorneys. How she presents as a witness and how she holds up on the stand matters.
In the next part, I will discuss the biggest question that law enforcement and the prosecution will have and that is why she went to his house a second time after her life-threatening first encounter with Mr. Bauer.
Matthew F. Tympanick is an Associate Attorney at Wicker Smith in Sarasota, Florida. He is a graduate of University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. You can follow him on Twitter @Tympanick20.