Updated: Aug 7
As seen a few weeks ago, the Petitioner’s (victim’s) motion for a five-year restraining order was denied by the Judge. That means that in the Judge’s opinion, Trevor Bauer is highly unlikely to abuse and/or contact the victim in the future. What does it mean for the pending criminal investigation? For one thing, the pending criminal investigation doesn’t simply disappear. The Pasadena Police Department has chosen to present their findings to the Los Angeles County District Attorney’s Office and allow the DA’s Office to make the final decision. With Mr. Bauer being a high-profile public figure, the Police and District Attorney’s Office are going to take as much time as possible. The thinking being, that either way the ramifications will be huge. With one decision, you just charged the reigning Cy Young winner with a serious felony, or you declined to prosecute the case despite the horrific photographs that exist everywhere. What actual conversations go on behind the scenes when making a charging decision on a serious case and what viewpoint angles do the people who make the decisions take?
The Political Angle
The first thing one needs to understand that the District Attorney is unlikely going to able to defer the decision to charge to his subordinate. The DA needs to be behind this decision 110%. That is because the current District Attorney, George Gascon is currently amid a recall situation. That means if opponents of the District Attorney collect signatures from 10% of LA County voters (approximately 579,000 signatures) then a recall election would be held, and he could be voted out of office in under one year. If the decision was made not to charge Trevor Bauer, an argument would be made the DA’s office made that decision based on his socioeconomic status and possibly his race. That would anger a significant number of voters many of whom are unlikely to be as wealthy as Mr. Bauer is and would feel that the decision would have been different if Trevor Bauer was not Trevor Bauer. The DA has an obligation to set politics aside and decide to charge based on the evidence presented.
The Evidentiary Angle
The only way to make any charging decision is the based on the evidence presented. Does the prosecutor have a good-faith basis that they believe that they can prove this case beyond a reasonable doubt? If the answer is no, then the case should decline the case. A case should never be filed simply because the prosecutor believes that this prospective defendant might have committed the alleged crime or worse this Defendant is incarcerated, and it makes for a quick and quiet conviction. When making the charging decision, the prosecutor will have likely spoken with the alleged victim on several occasions. If he/she is seasoned, they will likely speak with the alleged victim at multiple points of the day. Are they a morning person? How do they dress when they come to speak to the prosecutor? How does the victim react when they are asked potentially unfair questions? Will this victim present well to a jury, or will she turn them off? Rarely is a jury going to believe a victim and sympathize with that victim if the jury doesn’t like them. It is a harsh truth. The prosecution will also need a good answer to as to why the victim went back to Trevor Bauer’s house a second time. That is because the defense will certainly try to introduce text messages where it appeared as though the victim was looking for a payoff. There is nothing a trial jury hates more than being used. If it appears that she is only cooperating now because Bauer wouldn’t pay, a jury is not going to sympathize with the victim. The prosecution’s theory of the case is that she wanted it rough, but she never consented to being choked unconscious. As stated in my previous article, the alleged crime occurs once the victim is unconscious. That is because if the victim is unconscious during sex for even a few moments, that victim has lost to her ability to withdraw consent. The prosecution wants a jury who will sympathize with the victim and apply that law as it is written. That is because juries almost always do what they think is right and that is often in conflict with the law actually is.
Would I charge Trevor Bauer with sexual assault? The honest answer is I don’t know. That is because, I do not have all the facts and evidence. I only have second-hand information reported by news outlets. However, once a decision is made you might just have a better understanding as to why it was made.
Matthew F. Tympanick is an Attorney in Sarasota, Florida. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on the UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of domestic violence cases. You can follow him on Twitter @Tympanick20.