IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA. BETHANY V. BOWEN, ) CASE NO. 4: 07CV3221 Plaintiff, ) ) v. )

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BETHANY V. BOWEN, ) CASE NO. 4: 07CV3221 Plaintiff, ) ) v. ) ) ORDER TO SHOW CAUSE ) PLAINTIFF S RESPONSE HON. JEFFRE CHEUVRONT ) Defendant, IN HIS OFFICIAL CAPACITY AS ) JUSTICE OF THE DISTRICT COURT ) FOR THE STATE OF NEBRASKA. ) AFFIRMATION AND MEMORANDUM IN RESPONSE TO COURT S SHOW CAUSE ORDER JENNIFER HOULT, an attorney admitted to practice law in the courts of New York and Massachusetts, and admitted in to practice pro hac vice in Nebraska in the instant proceedings affirms under penalty of perjury that: I am counsel for the Plaintiff in the instant matter. I am fully familiar with the facts of this case. I submit this affirmation based upon a review of the documents in the underlying criminal action, State v. Safi, and relevant state and federal law. WENDY MURPHY, an attorney admitted to practice law in state and federal court in Massachusetts and in the First Circuit Court of Appeals, and admitted to practice pro hac vice in Nebraska in the instant proceedings, affirms under penalty of perjury that: I am counsel for the Plaintiff in this matter and represented her in matters related to the underlying criminal proceedings. I submit this affirmation based on my conversations 1

2 with the Plaintiff, Nebraska Assistant County Attorney Pat Condon, Vice President of the National District Attorneys Association Joshua Marquis, a review of the files in the underlying case, and a review of relevant state and federal law. SUE ELLEN WALL, an attorney licensed to practice in state and federal court in Nebraska, affirms under penalty of perjury, that: I am local counsel for the Plaintiff in the instant matter, and have represented her in matters related to the underlying criminal proceedings in which capacity I attended the July 11, 2007 hearing in the underlying matter. I am familiar with the facts of this case and have reviewed the case file and relevant law. I have spoken several times with the Plaintiff, and have conferred with Assistant County Attorney Pat Condon. We submit this affirmation and memorandum in response to the court s September 10, 2007 order requiring the Plaintiff to show cause why the court should not conclude that (a) the complaint was filed for an improper purpose and (b) the claims and legal contentions set forth in the complaint are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law under Fed. R. Civ. P. 11(b)(1) &(2). I. THE COMPLAINT WAS NOT FILED FOR AN IMPROPER PURPOSE This is a case of first impression of national importance. Under the law governing Neb. R. Civ. P. 403, U.S. Const. Amendments 1, 5, and 14, the Plaintiff filed instant claim alleging the infringement of her First Amendment rights by defendant Jeffre Cheuvront ( Judge Cheuvront ) in his capacity as the judicial officer who impermissibly infringed on her constitutional rights during the period she voluntarily appeared as a citizen witness rape victim providing testimony to assist the State in the prosecution of that underlying sexual assault. The Plaintiff has previously sought review constituent with her constitutional Due Process rights, however, her two 2

3 attempts to obtain such review in the Nebraska state courts did not result in review at the standard mandated by the federal constitution. The Plaintiff filed this complaint seeking declaratory judgment under 42 U.S.C which has jurisdiction over this matter, and gives her standing to raise her claim for procedurally appropriate review. CASE HISTORY RELEVANT TO THE INSTANT ORDER TO SHOW CAUSE In the underlying criminal action, the State charged Pamir Safi with felonious sexual assault of the instant Plaintiff. The Plaintiff reported that after consuming alcohol at a college Halloween party, Mr. Safi, a man she did not know and has no memory of ever meeting, drugged her, took her against her will to another location, and that she awoke from an unconscious state to find herself covered in vomit while being raped by Mr. Safi. The underlying criminal case has been scheduled for trial twice. The first two trials ended in mistrial rulings. A third trial is tentatively scheduled for late 2007 or early Prior to the first criminal trial, Mr. Safi s counsel filed a motion in limine to preclude witnesses from using the words victim, assailant, attack, sexual assault kit, and rape alleging that these words would be unfairly inflammatory, prejudicial, or misleading and they invade the province of the jury. Lanc. Co. Neb. Dist. Ct. Case No. CR , Defense "Motion in Limine: Prejudicial Terms," filing #15, October 10, In response, Judge Cheuvront precluded specified testimonial language ( language order ) in an order from the bench. Nebraska Assistant County Attorney Pat Condon formed the legal opinion that the State wanted to seek judicial review but had no authority to file an interlocutory appeal from a motion in limine, and subsequently conveyed this fact to Plaintiff s counsel Wendy Murphy and Sue Ellen Wall. 3

4 Judge Cheuvront placed the instant Plaintiff under legal oath to testify truthfully and accurately during the first trial. The jury was unaware of the court s language order. Plaintiff stumbled in her testimony as she attempted to comply with the language order. Plaintiff and other witnesses reportedly had difficulty complying and on more than one occasion used the forbidden terminology. The first trial resulted in a mistrial because the jury could not agree on a unanimous verdict. Prior to the second trial, on July 2, 2007, Judge Cheuvront ordered the Plaintiff to refrain from using the terms rape, assailant, and victim. The court further ordered that the rape kit or sexual assault kit be referred to as the sexual examination kit and the SANE (Sexual Assault Nurse Examiner) Nurse be referred to as the sexual examiner. A prosecution motion seeking to forbid use of the words sex and intercourse was denied. Judge Cheuvront then ordered the witnesses, including the Plaintiff, to sign an order acknowledging the language order and the possible punishments they faced if they violated the language order ( acknowledgment order ), which included contempt. Believing the language order violated her constitutional rights, the Plaintiff refused to sign the acknowledgment order and sought a venue for a procedurally appropriate review to seek redress of her First Amendment and due process claims. Citing Nebraska law, the Plaintiff asked Judge Cheuvront to hold her in contempt, and stay any related sanction pending appeal as a means to obtain appropriate review of her claims regarding the language order. Judge Cheuvront declined to consider her request. The Plaintiff then filed a Writ of Habeas Corpus with the Nebraska Supreme Court seeking review of her constitutional claims on July 10, Her Writ was dismissed without hearing or comment on July 11, Plaintiff s original local counsel withdrew because of a conflict. Plaintiff obtained substitute local counsel, Attorney Wall, who filed a motion for reconsideration of the language order on July 11. On July 11, 2007, Judge Cheuvront conducted a hearing on 4

5 the issue of whether the instant Plaintiff intended to comply with his language order during trial. She testified that she did not believe she could take an oath to tell the truth and then use words that did not accurately reflect her experience. At that hearing, the Plaintiff s constitutional claims were not reviewed according to the requisite standard and her motion for reconsideration was not addressed. The following day, prior to the completion of voir dire and jury selection, Judge Cheuvront declared a mistrial on grounds related to pretrial publicity and public criticism of his language order. The mistrial ruling was unrelated to the Plaintiff s anticipated noncompliance with the court s language order. On or about August 23, 2007, the Plaintiff learned that the criminal case would proceed to a third trial at the end of 2007 or early She commenced this action on or about September 6, 2007 seeking an expedited hearing for declaratory relief prior to the beginning of the third criminal trial. On September 10, 2007, Judge Kopf served an Order to Show Cause on Plaintiff s counsel citing Fed. R. Civ. P. 11(b)(1) and (2). I. IMPROPER PURPOSE STANDARDS UNDER Fed. R. Civ. P. 11(b)(1) Fed. R. Civ. P. 11(b)(1) cites harassment, unnecessary delay, and needless increase in litigation costs as improper purposes for the filing of civil complaints. Additionally, courts have held that Rule 11 forbids other types of improper purposes including insufficient factual and legal foundation. Kunstler v. Britl, 914 F.2d 505 (4 th Cir. 1990). Additionally, Judge Kopf s Order to Show Cause raises a claim regarding the propriety of filing a legal action if the purpose is to cause the recusal of Judge Cheuvront from the underlying criminal proceeding or to generate pretrial publicity about the Plaintiff and said criminal proceeding. 5

6 a. HARASSMENT Violations of the Rule 11(b)(1) must be proven by clear evidence. Employee Staffing of America v. Mercer, 1998 U.S. Dist. LEXIS 3104, *6 (S.D.N.Y. 1998)(citing Sierra Club v. United States Army Corps of Eng'rs, 776 F.2d 383, 391 (2d Cir. 1985), cert. denied, 475 U.S (1986)). Claims of Rule 11 harassment require an objective evaluation of the intent of the filing attorney, rather than evidence of the perception of the filing attorney s opponent. While many individuals may experience litigation as harassment, the relevant issue under Rule 11 is the filing attorney s intent. Kunstler v. Britt, 914 F.2d 505, 518 (4 th Cir. 1990). Neither the Plaintiff nor any of the Plaintiff s three attorneys filed this case with any intent to harass Judge Cheuvront. Instead, the case history reveals that the Plaintiff has twice previously sought appropriate review of her constitutional claims not only without success but also without any meaningful review of her federal constitutional rights. Given that Judge Cheuvront issued roughly the same language order in both of the two prior criminal actions, Plaintiff filed this case, and sought expedited review, two weeks after learning that the third criminal trial would start at the end of 2007 or early in The Kunstler court observed that Rule 11 is not violated when the central and sincere purpose for filing a complaint is to vindicate rights in court, and the complaint has factual and legal foundation. Id. The instant case history stands in contrast to that of Kunstler, wherein the court found that Plaintiffs' counsel, who agreed to a dismissal shortly after filing the case, never intended to litigate the claim, but instead filed the case for publicity, to embarrass state and county officials, to use as leverage in criminal proceedings Id. at 519. Here the Plaintiff s repeated and unsuccessful attempts to obtain review of her constitutional claims in state court venues are evidence that she has a proper purpose in filing the case sub judice. 6

7 b. UNNECESSARY DELAY When a citizen such as the instant Plaintiff seeks procedurally appropriate review of an alleged constitutional violation, this is not evidence of any attempt to cause unnecessary delay. As described infra, Plaintiff has twice previously and unsuccessfully sought procedurally appropriate review of her constitutional claim. She filed this case two weeks after learning of the scheduling of the third criminal trial, well in advance of that action s commencement date, and asked for an expedited review. An appropriate review of a valid constitutional claim cannot be construed as unnecessary delay when there is no evidence this federal action will cause any delay, much less an unnecessary delay. It is noteworthy that Mr. Safi waived his speedy trial rights at the August 2007 hearing wherein it was announced that a third trial would be sought by the State of Nebraska. Since Mr. Safi expresses no objection to the passage of time, and this proceeding can be resolved prior to the next date for the underlying criminal trial in accordance with the administrative and scheduling needs of the court and the parties to the criminal case, this matter cannot be viewed as causing unnecessary delay under Rule 11. c. NEEDLESS INCREASE IN LITIGATION COSTS Seeking procedurally appropriate review of the alleged infringement of one s constitutional rights, where no such review has been conducted and where such review is otherwise unavailable, is not evidence of an attempt to needlessly increase litigation costs. d. ATTEMPTING TO FORCE RECUSAL The Plaintiff has never, and does not here seek Judge Cheuvront s recusal in the underlying criminal matter. In fact, her dogged attempts to receive appropriate review of her claim, her request for expedited declaratory rather than injunctive relief, and her swift filing of this action well in advance of the third criminal action all provide evidentiary support for the fact that she seeks declaratory relief prior to the commencement of that 7

8 criminal action. Furthermore, the Plaintiff has no reason to believe that Judge Cheuvront would not abide by any federal declaratory relief issued in the instant proceedings. e. GENERATING PUBLICITY Neither the Plaintiff nor her counsel have initiated or contacted any media to generate publicity about this case through a press release or any other device. Attorney Wendy Murphy responded to a few reporters questions by providing short statements indicating in sum and substance that this case is important not only to the Plaintiff but also because it is a case of first impression and one of increasing concern to participants in the state court criminal justice system nationwide. In any event, speaking to the press is not grounds for Rule 11 sanctions. Revson & Burstein v. Cinque & Cinque, 221 F.3d 71, 8 (2d Cir. 2000) (citing Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d Cir.)). f. PERSISTANCE IN RESPONSE TO REPEATED ADVERSE RULINGS Improper purpose under Rule 11 can be demonstrated by excessive persistence in pursuing a claim after repeated adverse rulings or by obdurate resistance out of proportion to the amounts or issues at stake. Pierce vs. Commercial Warehouse, 142 F.R.D. 687, 690 (D. Fla., M. D. Fla., 1992). While the Plaintiff has twice sought review of her constitutional claims, there has been no procedurally appropriate review of those claims and no substantive determination on the merits. Thus, Judge Cheuvront s refusal to hold Plaintiff in contempt, and the appellate court s refusal to grant certiori to her Writ of Habeas Corpus do not fall within the types of repeat adverse rulings contemplated by Pierce. g. INSUFFICIENT BASIS IN FACT AND LAW Rule 11 demands that attorneys fully investigation both facts and law before signing complaints and other pleadings, and that they not file pleadings for improper purposes. Id. at 692. Reasonable evaluation of a Rule 11 claim includes consideration of 8

9 the time available to the attorney prior to filing, whether the attorney relied solely on his client for information, and whether the pleading argues the law plausibly. Id. at 691. In addition to the investigation described infra, Joshua Marquis, Vice President of the National District Attorneys Association described to Ms. Murphy, co-counsel in the instant case, that similar language orders pose a growing and frustrating problem in many state courts because prosecutors lack either procedural authority to seek judicial review, or standing to assert the personal rights of victims and witnesses. Mr. Marquis reports that such orders appear disproportionately in cases alleging sexual violence. Federal judicial guidance is critical because of both the fundamental rights at stake for the victim in instant case, and the capacity of the criminal justice system to effectively redress sexual violence. Affidavit of Joshua Marquis. The national importance of effective prosecutorial response to sexual violence cannot be understated. Considerable evidence documents the epidemic incidence of sexual violence, the paucity of prosecutorial response, the staggering costs to the American tax payer, and the government and public interest in effective prosecutorial response, in short, the issues raised here are of profound and national significance. 1 1 [R]ape is probably the most frequently committed serious violent crime in the United States. LEE ELLIS, THEORIES OF RAPE: INQUIRIES INTO THE CAUSES OF SEXUAL AGGRESSION 4 (1989). Judith Herman, M.D., Address at Rape and the Failure of Law Reform: What s Still Wrong and What You Can Do About It Conference, New England School of Law (Feb. 22, 2002)(describing the incidence of sexual violence as staggering seen epidemiologically); LEE ELLIS, THEORIES OF RAPE: INQUIRIES INTO THE CAUSES OF SEXUAL AGGRESSION 4 (1989); DIANA E.H. RUSSELL & REBECCA M. BOLEN, THE EPIDEMIC OF RAPE AND CHILD SEXUAL ABUSE IN THE UNITED STATES (2000); DIANA RUSSELL, SEXUAL EXPLOITATION: RAPE, CHILD SEXUAL ABUSE, AND WORKPLACE HARASSMENT (1984). Conservative estimates indicate that 25% of American girls and 10% of American boys are victims of sexual violence before they turn 18. DOUGLAS W. PRYOR, UNSPEAKABLE ACTS: WHY MEN SEXUALLY ABUSE CHILDREN 2 (1996). 44% of San Franciscan women experience rape or attempted rape after the age of 18. DIANA RUSSELL, SEXUAL EXPLOITATION: RAPE, CHILD SEXUAL ABUSE, AND WORKPLACE HARASSMENT 47 (1984). In addition to men who report sexual assaults to hospital emergency rooms staff, anecdotal evidence suggests that sexual violence against adult men may be epidemic in certain institutional settings, such as prison. SANDRA BLOOM & MICHAEL REICHERT, BEARING WITNESS: VIOLENCE AND COLLECTIVE RESPONSIBILITY 234 (1998). Offenders can pose a significant risk to the community, often committing numerous assaults. See R. Karl Hanson, Age and Sexual Recidivism: A Comparison of Rapists and Child Molesters available at Robert Prentky, Child Sexual Molestation in HANDBOOK OF PSYCHOLOGICAL APPROACHES WITH VIOLENT OFFENDERS (V.B. Van Hasselt et al. eds., 1999); R. Karl Hanson, Child Molester Recidivism, RESEARCH SUMMARY: CORRECTIONS RESEARCH AND DEVELOPMENT, Solicitor General of Canada, Vol. 1, No. 2, July 1996 available at Raymond A. Knight, An assessment of 9

10 After surviving the fear, pain, and humiliation of the initial trauma of sexual violence, many male and female victims are unwilling to assist law enforcement, fearing a secondary round of trauma at the hands of the justice system, involving shame and humiliation, and fearing they will not believed. Patricia Frazier & Beth Hanley, Sexual Assault Cases in the Legal System: Police, Prosecutor, and Victim Perspectives, 609 LAW AND HUMAN BEHAVIOR, Vol. 20, No. 6, (1996) (noting also that only 10% of crimes of sexual violence are reported to the police, and that only 3% result in conviction). Following the verdicts in the small percentage of cases that are prosecuted, victims who appear as states witnesses generally want nothing more than to go home and recover from the initial and secondary traumas they have experienced. Even if their constitutional rights have been violated during the criminal proceedings, and even if that infringement involved the preclusion of testimony that might have resulted in the criminal conviction of their assailants, fighting to vindicate their constitutional rights will the concurrent validity of a child molester typology, 4 J. INTERPERSONAL VIOLENCE No.2, (June 1989); Raymond Knight et al., A system for the classification of child molesters: reliability and application, 4 J. INTERPERSONAL VIOLENCE No. 1, 3-23 (Mar. 1989). One study of incarcerated rapists found that, on average, each offender had committed 581 crimes, averaging 44 crimes per year over a 12-year period prior to their first arrest. G.G. Abel, M.S. Mittelman, & J.V. Becker, Sex Offenders: Results of Assessment and Recommendations for Treatment, in CLINICAL CRIMINOLOGY 191 (M.H. Ben-Aron et al. eds., 1985). Incest offenders may assault their children dozens or hundreds of times. See DOUGLAS W. PRYOR, UNSPEAKABLE ACTS: WHY MEN SEXUALLY ABUSE CHILDREN 2 (1996). Trauma treatment experts estimate that every incident of child sexual abuse alone costs American taxpayers $99,000. T. Miller, M. Cohen, & B. Weirsma, Victim Costs and Consequences: A New Look (U.S. Dep t of Justice, Nat l Inst. of Justice 1996) cited in SANDRA BLOOM & MICHAEL REICHERT, BEARING WITNESS: VIOLENCE AND COLLECTIVE RESPONSIBILITY 11 (1998). The fiscal cost of sexual violence is extremely high. Due to the psychological and physical effects of sexual violence, victims are often unable to become effective workers, failing to contribute to the tax-base or social security, and potentially needing public assistance of various sorts..sandra BLOOM & MICHAEL REICHERT, BEARING WITNESS: VIOLENCE AND COLLECTIVE RESPONSIBILITY 234 (1998). Compared to other violent crimes, sexual violence causes more profound harm than any other crime except murder: 80% of rape victims experience post-traumatic-stress-disorder ( PTSD ) compared to 39% of victims of aggravated assault. Kilpatrick & Resnick, PTSD associated with exposure to criminal victimization in clinical and community populations in Post-Traumatic Stress Disorder: Dsm IV And Beyond, (J.R. T. Davidson & E.B. Foa eds. 1993), cited in Sandra Bloom & Michael Reichert, Bearing Witness: Violence and Collective Responsibility 55 (1998). Untreated PTSD can result in a variety of social and economic costs including dependence on drugs or alcohol, difficulty maintaining steady employment, and myriad medical and psychological problems. Sandra Bloom & Michael Reichert, Bearing Witness: Violence and Collective Responsibility (1998). 10

11 have no post-trial effect on the assailant or the integrity of the criminal proceeding due to the protection of the Double Jeopardy Clause against retrial post-acquittal. As a result, the issues raised here have been virtually immune to meaningful redress in any jurisdiction. The very nature of a motion in limine ensures that a third party will rarely have an opportunity to seek judicial review in a time frame that does not interfere with the imminent needs of the trial court or the speedy trial rights of the accused. Likewise, as noted above, because prosecutors lack standing to assert the rights of private persons, and often lack procedural avenues through which they can seek appellate relief from motions in limine, this case presents an opportunity for a federal court to address the respective rights of the parties in a context where the classic issues at stake in criminal litigation pose no temporal, substantive or procedural barrier to review. This case presents a unique posture in that the state s complaining witness has had her constitutional rights infringed during two prior criminal trials that ended in mistrials. The third trial has not commenced. The prior case history suggests a likely repetition of the language order and resultant constitutional infringement in any future trials of Mr. Safi. Because of this unique case history, the vindication of the Plaintiff s constitutional rights, which would permit her to describe her experience in relevant words of her choosing, could have a significant effect on the outcome of the third criminal trial. Thus this case stands in the eye of a perfect legal storm in terms of offering this Court a unique opportunity to resolve an important, and thus far unredressed anywhere, legal controversy. In its seminal Rule 11 decision, the Kunstler court held that an attorney may not delegate her responsibility to personally investigate the foundation of a case. Kunstler v. Britt, 914 F.2d 505 (4 th Cir. 1990). As described infra, the foundation of the complaint has been amply investigated on the facts and the law. The Plaintiff thus submits that there has been no punishable delegation under Rule

12 The legal foundation of this case as it relates to Fed. R. Civ. P. 11 (b)(2) is discussed in further detail below in Plaintiff s response to part two of the court s order to show cause. II. THE CLAIMS AND LEGAL CONTENTIONS SET FORTH IN THE COMPLAINT ARE WARRANTED BY EXISTING LAW This case arises at the intersection of the constitutional rights of the Plaintiff, a witness for the State, and Neb. Evid. R. 403, a rule that, intra alia, protects criminal defendants from unduly prejudicial evidence and protects the jury from confusing or misleading evidence. Judges have wide authority to order the state and its agents to use certain language and otherwise conduct itself in accordance with the fair trial rights of the accused, however, their power to issue orders against private citizens is more limited. One court has ruled that while a judge can restrict certain words used by a prosecutor, the judge cannot similarly control lay witnesses. Jackson v. State, 600 A.2d 21 (Del.1991)(finding it inappropriate for the prosecutor to use the victim label, but on rehearing the court expressly ruled that its decision was not intended to apply to witnesses.) The court explained: Jackson's claim of error was directed to permitting the prosecutor to refer to the complaining witness as the victim. The opinion does not state, nor does it imply, that the use of the term victim by witnesses, as a term of art or in common parlance, is a basis for objection. Id. at 25. The court noted that the word victim is a term of art synonymous with complaining witness. Moreover, the term victim is also used in the indictment in this case as it is routinely in criminal charges which are read to the jury. Id. at Other states have addressed restrictions on the use of the word victim, but these have been limited to orders directed at the prosecutor and at the court itself. See e.g., State v. Wright, 2003 Ohio 3511 (Ohio Ct.App.2003) ( the trial court should refrain from using the term victim, as it suggests a bias against the defendant before the State has proven a victim truly exists ); Talkington v. State, 12

13 682 S.W.2d 674, 675 (Tex.Ct.App.1984) (jury instruction referring to complaining witness as victim was improper). Since private citizens are not engaged in the same type of state action relationship with the accused as the prosecutor and police, they do not shed their individual rights at the courthouse door. Thus, court orders like the instant language order against private persons necessarily provoke constitutional concerns. Shelley v. Kraemer, 334 U.S. 1, 14, 68 S.Ct. 836, 92 L.Ed (1948)(deeming long [ ] established the proposition that the actions of state courts and judicial officers in their official capacities constitute state action). Moreover, while orders precluding testimony that is inadmissible as a substantive matter are entirely valid, it is quite different for a judge to preclude a citizen s right to describe a personally experienced event in a manner inconsistent with her experience, when such testimony is unequivocally relevant to elements of the crime charged, and the order overtly infringes on the witness free speech and petitioning rights under the United States and Nebraska Constitutions. 1. FREE SPEECH AND PETITIONING RIGHTS The Nebraska Constitution provides that every person may freely speak, write and publish on all subjects.... Neb. Const. Art. I, 5. The federal Constitution is in accord, Congress shall make no law... abridging the freedom of speech..., and the U.S. Supreme Court has recognized that even in the context of preserving the authority of judges to control judicial proceedings, freedom of speech is perhaps the most treasured of civil liberties. Bridges v. California, 314 U.S. 252, 260 (1941) (noting that the contempt power of all courts, federal as well as state, is limited by the guarantee of the First Amendment against interference with freedom of speech). Indeed, to be punishable by contempt, courtroom conduct implicating First Amendment rights must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. Craig v. Harney, 331 U.S. 13

14 367, 376 (1947); In re Little, 404 U.S. 553, 555 (1972). In this case there has been no determination that the Plaintiff will in any way imperil administration of justice if she testifies in a manner inconsistent with the restrictions imposed in the language order. Furthermore, while criminal defendants enjoy a presumption of innocence, Mr. Safi cited no constitutional authority in support of his pre-trial motion to infringe on the constitutional rights of witnesses providing evidence against him. The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other, and even when balancing free speech rights against the important rights of the accused in a criminal trial, the barriers to prior restraint remain high. Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). It is well settled that government encroachments on free speech must be narrowly tailored to serve a compelling state interest. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Given that the court has the means to protect the defendants' fair trial rights with jury instructions and by allowing the defendant to argue implications regarding the victim's credibility as they relate to her choice of terminology, the court's language order and threatened sanctions are not narrowly tailored to serve a compelling state interest and thus needlessly intrude on petitioner's free speech rights. In Nebraska Press Assn. the United States Supreme Court held that a state court order restraining publication of evidence in a criminal case was an unconstitutional restraint on free speech. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication chills speech, prior restraint freezes it, at least for the time. Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). Any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity, Id. (citing Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) and noting that the state carries a heavy burden 14

15 of showing justification for the imposition of such a restraint. See also Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) ("By definition, the injury is inchoate: because speech is chilled, it has not yet occurred and might never occur, yet the government may have taken no formal enforcement action. We cannot ignore such harms just because there has been no need for the iron fist to slip its velvet glove."); Mangual v. Rotger-Sabat, 317 F.3d 45, 57 (1st Cir. 2003) (a plaintiff suffers injury in fact when she is chilled from exercising her right to free expression or forgoes expression in order to avoid enforcement consequences"); Navegar, Inc. v. United States, 103 F.3d 994, (D.C. Cir. 1997) (noting that federal courts most frequently find pre-enforcement challenges justiciable when the conduct "chilled" is protected by the First Amendment.) (citations omitted); accord D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004) (a chilling effect on the exercise of a plaintiff s First Amendment rights may amount to a judicially cognizable injury in fact, as long as it arise[s] from an objectively justified fear of real consequences ); Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987). The Plaintiff s rights were abridged and/or chilled in both the first and second underlying criminal trials. The Nebraska Constitution expressly guarantees that the Plaintiff has a right... to petition the government, or any department thereof, [which] shall never be abridged. Neb. Const. Art. I, 19. The federal Constitution provides a similar scope of protection where the right of the people to petition the Government for a redress of grievances is explicit and has been construed to cover citizens who seek redress in judicial proceedings. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Several courts have recognized a First Amendment right to testify truthfully before a judicial proceeding. See e.g., Benedict v. Town of Newburgh, 95 S.Fupp.2d 136 (S.C.N.Y. 2000); Cossette v. Poulin, 2006 WL (D.N.H. Dec. 18, 2006); Samora v. Poulin, 2007 WL (D.N.H. May 9, 2007). Indeed, these cases note 15

16 the critical importance of uninhibited testimony to the success of a court s truth seeking function. See e.g. Catletti ex rel. estate of Catletti v. Rampe, 334 F.3d 225 (2d Cir. 2003). Such decisions provide the foundation that allows witnesses to satisfy the testimonial oath that require them to testify truthfully and accurately. Judge Cheuvront s language order abridged the Plaintiff s petitioning and free speech rights, and recent legislative developments suggest that virtually any abridgement of those rights is unlawful. Under Neb. Rev. Stat ,241 (Reissue 1995), Nebraska s so-called anti-slapp law, the Legislature expressly found and declared that: (1) It is the policy of the state that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. The information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy. The laws, courts, and other agencies of this state must provide the utmost protection for the free exercise of these petition, speech, and association rights; (emphasis added). (2) Where the founders of our Federal Constitution, as well as the people of Nebraska, have expressed their intention that persons engaged in petitioning and free speech activity deserve the utmost protection against abridgment, and where the interests that must be balanced include those of the Plaintiff, defendant, government, and people, the Plaintiff respectfully submits that the balancing test cited by Judge Cheuvront, defendant s right to a fair trial trumps all others, is constitutionally incorrect. 16

17 3. DUE PROCESS Judge Cheuvront s order further violated the Plaintiff s substantive and procedural due process rights under the 14th Amendment s due process clause and the Nebraska constitutional analogue which provides that No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws. Neb. Const. Art. I, 3. Due process of law has been defined in Nebraska as such exertion of power of government as sanctioned by settled maxims of law and under such safeguards for protection of individual rights as prescribed for class of cases to which the one in question belongs. Chicago, B. & Q. R. R. Co. v. Headrick, 49 Neb. 286, 68 N.W. 489 (1896). Judge Cheuvront s language order was issued without any participation by the Plaintiff or an attorney on her behalf with standing to represent her personal constitutional rights. As a witness for, but not agent of, the State, Plaintiff had no standing as a party to contest the language order. Her efforts to seek redress in her capacity as a third-party in the trial and appellate levels of the state court were not addressed on the merits. There is no legal authority for government encroachment of fundamental constitutional rights without at least providing the person whose rights are threatened a meaningful opportunity to be heard. Where a judicial order has infringed on a private citizen s fundamental rights without the provision of constitutionally mandated due process, a case brought under 42 U.S.C is appropriate and does not constitute a violation under Rule 11. III. PLAINTIFF S ARGUMENTS FOR AN EXTENSION OR MODIFICATION OF EXISTING LAW ARE NONFRIVOLOUS It is permissible under Rule 11 for an attorney to argue that existing law should lead to a result in the particular case even if that issue has not been ruled on. Pierce vs. Commercial Warehouse, 142 F.R.D. 687, 690 (D. Fla., M. D. Fla. 1992). This is a case of first impression. While founded soundly in existing law, the Plaintiff seeks an 17

18 extension or modification of existing law insofar as such extension or modification is necessary to provide declaratory guidance to state courts in the novel matters raised herein. The question of how state court judges should protect witnesses First Amendment rights is of national importance given the government and public s interest in the adjudication of justice and the critical role played by volunteer lay witnesses therein. The authority of the court to restrict evidence at trial is found in Neb. Evid. R Patterned on Fed. R. Evid. 403, this rule prohibits the introduction of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury Neb. Evid. R. 403, Neb. Rev. Stat , Fed. R. Evid Undue prejudice in the Rule 403 context generally refers to an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Fed. R. Evid Edition, Advisory Committee s Note, Fed.R.Evid. 403, 50 (2001). Nebraska courts have held various forms of relevant evidence are not unduly prejudicial under Rule 403 in cases involving allegations of sexual violence. The Nebraska Supreme Court held that sexual devices and sexually explicit videos present in the home where the parental sexual abuse allegedly occurred were admissible despite their highly prejudicial value. The court held that they were not unduly prejudicial because their probative value was not substantially outweighed by any prejudice against the defendants. State v. Donna McPherson, 266 Neb. 715, 731, 668 N.W.2d 488, 502; 2003 Neb. LEXIS 151, *27 (Neb. 2003); State v. Roger McPherson, 266 Neb. 734, 744; 668 N.W.2d 504, 514; 2003 Neb. LEXIS 152, *17 (Neb. 2003). The Nebraska Court of Appeals, citing other cases with similar holdings, held that evidence of other similar sexual conduct has independent relevance [in cases alleging sexual violence], and such evidence may be admissible against a defendant irrespective of whether that conduct involved the complaining witness or third parties. State v. Arthur R. Sobey, 2002 Neb. 18

19 App. LEXIS 22, *24 (Neb. Ct. App. 2002). The Sobey decision also noted that evidence of sexual contact with young males was highly probative on the issue of the defendant's sexual arousal and gratification, and that rule 403 does not prohibit the introduction of prejudicial evidence, but only evidence that is unfairly prejudicial. Id. at *23 (citing State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (Neb. 1990)). In sum, the language order from which the constitutional violations alleged in the complaint arose is not supported by the relevant precedent which allows evidence more prejudicial than the language at issue here, in circumstances where such evidence is directly relevant to the charges in dispute. Furthermore, while Judge Cheuvront s language order was founded in the first prong of Neb. Evid. R. 403, Neb. Rev. Stat , it necessarily had the unforeseen, if not ironic, consequence of triggering violations of the second and third prongs of that rule, which prohibit testimony that will cause confusion of the issues, or misleading the jury. The preclusion of specific accurate and unambiguous words led irrevocably to inaccurate and distorted testimony. For example, Judge Cheuvront stipulated that a sexual assault kit be called a sexual kit, a phrase that is confusing, misleading and factually incorrect. Since no medical testing kit with such a name exists, this component of the language order violated the Plaintiff s testimonial oath to testify truthfully and accurately, as well as Neb. Rule of Evid.403. Judge Cheuvront similarly ordered that a Sexual Assault Nurse Examiner be referred to as the sexual examiner. Again, the terms are not analogous. While Sexual Assault Nurse Examiner is a specific title, recognized by law as a phrase that refers to an individual with particular training and certification in the medical and forensic response to reports of sexual violence, there is no existing medical professional called a sexual examiner. Thus, saying that the Plaintiff was examined by a sexual examiner would be confusing to the jury and would likely be misunderstood by jurors as evidence 19

20 that the victim was seen by someone other than an appropriate and specially-trained medical professional. The language order further barred the use of the words victim, attack, and rape, and allowed the words sex and intercourse. However, these two sets of words are not fungible and to strike certain words while allowing others with contrary meaning not only undermines the Plaintiff s right to testify fully and truthfully but also greatly enhances the risk of juror confusion. The precluded words depict unilateral imposition of sexual action without consent. See e.g. Bavelas, Coates, Bohner, Gerd, Writing About Rape: Use Of The Passive Voice And Other Distancing Text Features As An Expression Of Perceived Responsibility Of The Victim, British Journal of Social Psychology, (40), pp (2001); Bavelas and Coates, Is It Sex Or Assault: Erotic Versus Violent Language In Sexual Assault Trial Judgment, Journal of Social Distress and the Homeless, (10), pp (Nov. 2001) )( In the law and in the [victim s] experience, sexual assault is unilateral. ); Susan Ehrlich, REPRESENTING RAPE: LANGUAGE AND SEXUAL CONSENT (2001). In contrast, the words sex and intercourse depict consensual, bilateral sexual relations. Sexual Intercourse is defined as penetration of the vagina by the penis. (Merriam Webster s Online Dictionary intercourse, last visited Sept. 17, 2007)(referring readers to the word coitus which is defined as physical union of male and female genitalia accompanied by rhythmic movements. Merriam Webster s Online Dictionary dictionary/coitus, last visited Sept. 17, 2007). The verb forms of sex and intercourse use the preposition with, a word depicting consensual bilateral action. Unlike the Eskimos who purportedly have many words for snow, the English language provides few words to describe the experience for which the legal term of art sexual assault was 20

21 coined. The word rape is the most common unambiguous term available in modern usage. It has been suggested that the Plaintiff could use clinical terminology, rather than the words sex and intercourse, but while clinical descriptions may be appropriate and meaningful for the dispassionate analysis of information by experts, their use by lay witnesses will predictably cause confusion and mislead jurors for two reasons. First, lay people do not use clinical language to describe personal experience. Second, clinical language is often ambiguous when it comes to issues of consent and force, both of which are critical to the evaluation of the criminal charge here. Consider the following clinical descriptions: He closed his fingers into a fist and moved his arm such that it made contact with my face. She drove her vehicle and it made contact with my front fender. He removed the necklace from my neck. He placed his hands around my neck and applied pressure. When I regained consciousness his penis was inside my vagina. While they depict a level of technical accuracy, these descriptions do not distinguish between unilaterally imposed and bilaterally shared events. In many areas of law, including sexual violence, that distinction is the dividing line between legal and illegal conduct. (e.g. boxing versus assault; giving a gift versus robbery; having intercourse with someone versus sexual assault). Clinical language also does not convey witnesses experience of force, nonconsent, and emotion, all of which are relevant to the jury s understanding of the nature of the events in question as well as their evaluation of the witnesses experience and credibility. Descriptions likely to be used by witnesses, like He slugged me in the face, She slammed her car into my car, He ripped the necklace off my neck, I woke up covered in vomit and he was raping me, provide jurors with evidence of the physical sequence of events, as well as the human characterization of the experience of force and 21

22 non-consent, all of which are critical to the integrity of the truth-finding function in the administration of justice. Since a witness credibility is based, in part, on their emotion and the words selected to describe a criminal event, a witness who uses clinical language to describe violent criminal victimization will likely be deemed not credible by a jury. Clinical testimony is not reflective of the highly emotional way people normally experience violent victimization. Indeed, juries may well conclude that witnesses who use clinical language to describe violent experiences are not credible because their language choice implies the conduct in dispute was not upsetting. Andrew E. Taslitz, Rape and the Culture of the Courtroom 116 (1999) ("[Part of] the solution [to the problem of subconscious anti-victim linguistic bias] is to permit the victim to speak in an uninterrupted narrative. She should be free to tell her tale in a way closer to what is natural for her...") In the first underlying criminal trial, jurors, unaware of the court s language order, observed the Plaintiff struggling to find language to describe her experience accurately in satisfaction of her testimonial oath without violating the language order and in fear of being held in contempt. It is difficult to assess how this behavior affected the jurors assessment of the Plaintiff s credibility. However, even had the jury been advised of the language order, they would have been unable to differentiate whether the Plaintiff struggled in her testimony because she lacked credibility per se or because she found the words permitted her insufficient to describe her ordeal. In the instant Order to Show Cause, this Court suggested that the Plaintiff could have chosen not to testify, or asserted her Fifth Amendment rights. However, under those circumstances jurors would have heard no testimony from the sole eye-witness to the alleged crime and the public interest in prosecution of crime would have been disserved needlessly. Furthermore, the jury might well have drawn an incorrect negative 22

23 inference from the lack of testimony by the Plaintiff, assuming, wrongly, that she was hiding something. While a purely emotional basis for a verdict is impermissible, the words barred under the language order at issue here do not threaten to incite the jury to render a verdict on an emotional basis. Fed. R. Evid Edition, Advisory Committee s Note, Fed.R.Evid. 403, 50 (2001). Instead, the forbidden terms would provide the jury with a clear understanding of a witness physical and emotional experience, which is central to their evaluation of the events in question and any resulting legal accountability. The fact that evidence describes brutality in unequivocal terms does not make it unduly prejudicial. As the Kansas Supreme Court aptly noted, "gruesome crimes make gruesome evidence. State v. Green, 274 Kan.145, 148 (Kan. 2002). The predictable, though clearly unintended, result of Judge Cheuvront s language order threatened to hopelessly mire the jury in confusion with misleading testimony in violation of Rule 403, and force witnesses to violate their testimonial oaths. Such a fundamental obfuscation of the evidence, accomplished through the infringement of witnesses First Amendment rights, violates not only the witness interest, but also the interests of the public and the government in the due administration of justice. It is perhaps anticipating such unintended consequences that the commentary on Fed. R. Evid. 403 cautions that prior to making a determination on whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of limiting instructions. Fed. R. Evid Edition, Advisory Committee s Note, Fed.R.Evid. 403, 50 (2001). Here the underlying case involved the usurpation of a private citizen s federal constitutional rights through the use of an evidentiary rule. The United States Supreme Court has long recognized that rule-making bodies are not empowered to create rights. The function of rules is to regulate the practice of the court and to facilitate the transaction of its business.... [N]o rule of court can... abrogate or modify the 23

24 substantive law. Washington-Southern Navigation Co. v. Baltimore & Philadelphia S.B. Co., 263 U.S. 629, 635 (1924). The Plaintiff argues that when a state judge infringes impermissibly on the federal constitutional rights of a citizen witness through the vehicle of an evidentiary rule, the standard of review for the federal constitutional claims raised is not governed by the evidentiary rule, which was promulgated by committees for the efficient administration of the courts and is thus not substantive in nature. In other words, while defendants may move to exclude unduly prejudicial evidence under Rule 403, they have no substantive authority to move for the exclusion of lay witnesses' testimony that, while prejudicial, provides direct evidentiary support for any element of the alleged crime, particularly where such an exclusion infringes on the witnesses' free speech rights. Such claims require the standard of review mandated by the constitutional interests in question, and must be afforded due process. The Nebraska standard to overturn a Rule 403 order requires a showing of abuse of discretion. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (Neb. 2002). However, as no one had (or was granted) standing on behalf of the personal rights of the Plaintiff to contest the language order under Nebraska s evidentiary law, the federal constitutional issues at stake here could not be reviewed under the standards governing Rule 403. Given that the posture of the case in which the instant constitutional infringement occurred afforded no standing or forum for review of the constitutional issues, 42 U.S.C provides the sole and appropriate legal forum for this case. As such, there is no basis for dismissal or sanctions under Rule 11. IV. STANDARDS FOR SANCTIONS UNDER RULE 11 Rule 11 sanctions against attorneys are appropriate in various circumstances. Allen v. Van Hoy, 1993 U.S. Dist. LEXIS 13010, *11 (D. Or.1993) ( sanctioning an incarcerated prisoner appearing pro se after he filed forty-seven civil proceedings 24