Had it been a “garden variety” murder trial, the decision of Allegheny County Common Pleas Judge Alexander P. Bicket would likely be celebrated. Activists would be arguing whether the statue they demand built of him outside the courthouse should be bronze or marble. But there will be no statue of Judge Bicket built, and the question now is whether he will survive his decision or be the next judge to be Persky’d by the mob.
An Allegheny County judge last week overturned a jury’s guilty verdict in a sexual assault case and acquitted the defendant, a controversial move so rare that it stunned the state’s victim advocate and led two of the jurors to question their service.
The decision feels “like it’s almost an abuse of power,” Jennifer Storm, Pennsylvania’s Victim Advocate, said.
“I’m absolutely appalled,” said juror Leslie Mason, 33.
Upon the motion of the defense for a judgment of acquittal notwithstanding the verdict, Judge Bicket tossed out the jury’s guilty verdict based upon insufficient evidence. It’s very rare, but it happens when the evidence fails to meet the burden of proof beyond a reasonable doubt, yet the jury convicts anyway.
Joon Woo (Jason) Baik, 24, a former Carnegie Mellon University student, was acquitted in May of rape of an unconscious victim, simple assault and false imprisonment. But after deliberating for two hours, the jury of seven men and five women found the Korean and Canadian dual citizen guilty of sexual assault.
What his citizenship has to do with anything is a mystery, yet significant enough to be worthy of note in the clearly unsympathetic article. The issue at trial was whether the “victim” consented to sex, and reflects the massive ignorance and confusion spread by those who conflate incapacity with drunkenness.
The woman, a University of Pittsburgh student, told police that they watched a movie and drank and that she was too drunk to consent to having sex.
However, Mr. Baik said that they had consensual sex. He made an audio recording of the events that night, and in it, the woman repeatedly said she wanted to have sex and encouraged him.
But Assistant District Attorney Emma Schoedel argued that the woman said no to sex as many times as she said yes, and that she told Mr. Baik to stop.
That the defendant made an audio recording is . . . surprising. Whether it inured to his benefit isn’t clear. However, the description of the recording does little to clarify what it showed, whether the “no” changed to “yes” or the other way around. But as the key factor appears to be whether she was too drunk to be capable of consent, it would appear that her enthusiastic consent prevailed and the “no” isn’t really significant.
Judge Bicket granted the motion, finding that the evidence at trial was “so unreliable and contradictory that it is incapable of supporting a verdict of guilty and thus insufficient as a matter of law.”
In a criminal trial, the burden of proving guilt is on the prosecution, and proof of guilt must be beyond a reasonable doubt. Unreliable and contradictory evidence may be emotionally appealing to the jury, but doesn’t suffice to meet the legal burden.
“It wasn’t like we heard multiple experts testify to her blood alcohol toxicity,” Mr. Ness argued to Judge Bicket. “It wasn’t like the commonwealth established with sufficient evidence that she, in fact, had so much alcohol she was incapable of consent.”
Making inferences about the woman’s alcohol consumption was not enough, Mr. Ness said.
But the woman said so, and what about “believe the woman”? The woman said “no,” and that should have been the end of it, precluding her changing her mind and consenting.
At least two of the jurors who sat on Mr. Baik’s case were upset by Judge Bicket’s decision to throw out their verdict.
“Did he not hear the tape?” asked Ms. Mason.
No doubt Mason believed that her verdict was the right one, but was that based on proof?
“He heard all the yeses and ignored all the nos. That first ‘no,’ is all it should have taken — that no and given her intoxicated state,” Ms. Mason said. “The no came at the beginning — I do not want to go to your bedroom.”
At the end of the recording, Ms. Mason said, it was clear the victim was drunk. She can be heard screaming “’Why did you do this to me?’” for about five minutes, before running out of Mr. Baik’s apartment naked.
This isn’t about the law, but about Mason’s belief in the narrative, where she believes that drunkenness, in itself, precludes consent. It does not. It never had. Incapacity precludes consent, and the woman being drunk does not alter the fact of her consent. Nor does her earlier “no” preclude her from changing her mind and consenting.
But more to the point, the evidence is highly equivocal, even if one believes, as Mason clearly does, that this was a sexual assault. The law doesn’t require that a juror believe it, but that it be proven beyond a reasonable doubt.
Bruce Antkowiak, a former federal prosecutor who now teaches criminal law at St. Vincent College, said there’s no question that a judge has the authority to grant the defense motion, but that it happens “only in the most extreme cases where they truly feel that, as a matter of law, the evidence is just not there.
“Our system gives tremendous deference to juries,” he said. “It’s up to them to come out and do justice.”
Ultimately, the judge is the “stop-gap” for when the verdict is unsustainable as a matter of law because the evidence fails to suffice to meet the burden of proof. Judge Bicket wasn’t faced with “was she most likely drunk,” but whether the prosecution’s evidence was legally sufficient. The judge showed the fortitude to do his job by tossing the guilty verdict.
But in light of the outrage of activists in the post-Persky world, who demand that sex cases produce convictions because reasons, will be Judge Bicket pay the price for doing his job? The message to judges is that if you do the right thing legally in a sex case, you’re putting your future on the line. And that’s exactly what the activists want the message to be: hurt the defendants we hate, or else.