When Proof Fails In A Sexual Assault Trial

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.

25 thoughts on “When Proof Fails In A Sexual Assault Trial

  1. KP

    I will have sex
    I wont have sex
    I will have sex
    I wont…

    It all depends on that last petal you pull off.
    Just madness, no wonder we are not-breeding ourselves into oblivion.

  2. Parker

    Judges can be wrong or biased just like anyone else. If a jury convicted a cop and a judge overturned it would you be saying that the judge was definitely in the right and that the proof failed?

    1. SHG Post author

      I would say whatever the evidence showed, regardless of anything else. You would obsess over the identity of the party and your feelings about the offense. Therein lies the idiocy of your question.

      1. Ray Lee

        Do we want our institutions to operate on neutral principles or identity based group grievances an emotion? The neutral principles answer is frighteningly out of favor with all but the steadfast.

  3. wilbur

    I could never understand why a judge would choose to let such a case go to the jury in the first place. If the judge believes an element has not been proven or that the evidence is insufficient as a matter of law, just grant the motion for acquittal.

    Others have told me that where the judge is going to be pilloried for the decision anyway, then the judge may let the jury have the case in the hope they’ll acquit. I’ve never asked a judge about it; I’ve never been JNOV’d. It just seems bass-ackwards.

    1. SHG Post author

      The cynical answer is that the judge hoped the jury would do the dirty work and acquit, so he wouldn’t have to be that bad judge. But when the jury convicted instead, it was then up to the judge. JNOV is always worse than trial order of dismissal.

      1. Richard Kopf


        The less cynical answer is that the judge had serious reservations about the proof at the time he submitted the case to the jury but wanted time, if need be, to review a transcript of the trial and do legal research to determine whether his reservations were well founded. In the hurly burly of a trial a judge is under an enormous amount of time pressure with little or no opportunity for deep reflection.

        All the best.


        1. wilbur

          Thank you for weighing in, Judge. I didn’t want to ask you directly and put you on the spot.

          1. Richard Kopf


            You are most welcome.

            By the way, SHG’s suggestion that I am “less cynical” causes me to itch like crazy. After all, I have reputation to uphold.

            Damn it, I am always cynical but sometimes, particularly when my judicial brethren are involved, I use whatever cards I can play and hope the bluff works. I forgot that bluffs don’t fly on Simple Justice. But I at least deserve points for being disingenuous.

            All the best.


  4. Stephen J.

    Out of curiosity, what is the legal definition of “incapacity” when it comes to sexual consent? Most people, including the plaintiff in this case, seem to think of it as essentially “I made a decision due to intoxication that I would not have made while sober, because the intoxication impaired my ability to appreciate the consequences.” How is the legal definition stricter than this?

    Also, if the evidence was so self-evidently poor that the judge was confident in throwing that verdict out, why would the ADA have gone to trial with it? That’s an honest question: I would assume she could have seen the same problems with the evidence that the judge did.

    1. Miles

      It’s not that your question isn’t interesting, but when you start with “just out of curiosity,” and then prevail upon a lawyer’s time to explain it to you, you’re being an entitled little dick. Your random curiosity doesn’t entitle you to a lawyer’s time. Maybe find a less entitled and offensive way to ask.

      1. Stephen J.

        How should I have asked? I had no intention of being offensive, but nobody has ever told me before that simply prefacing a question with “Just out of curiosity” amounted to that.

        1. Miles

          Yet another question? Be a big boy and figure it out without prevailing upon someone else’s time to spoon feed you.

            1. SHG Post author

              Had you begun by pointing out the difficulty in distinguishing between drunk and incapacitated, and then noted that there doesn’t appear to be a clear line, you would have avoided the silly and self-entitled “just out of curiosity” intro favored by sophomores and introduced your question into the mix. What passes for an inoffensive entre into a question in gender studies class doesn’t work the same with grown ups in general, and lawyers in particular. That could explain why no one uses it here.

    2. phv3773

      As to the second question, one reason is confirmation bias. The ADA, or whoever, thought the original complaint seemed credible and interpreted all the evidence in that light.

      I don’t take paypal.

  5. NickM

    Under PA law (I’m assuming Allegheny County is in PA,and if I’m wrong, please substitute whatever the right state is), isn’t a verdict of guilty on sexual assault and not guilty of simple assault legally inconsistent?

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