Cephus Denied Discovery For “Victim’s” Privacy and Decency (Update: Not Guilty)

Star University of Wisconsin wide receiver Quintez Cephus is on trial. No wait, that’s former wide receiver, as he was thrown off the team upon the accusation, ending his college football career and any hope he had of going pro. It’s not as if he spent most of his life working toward such a future that an accusation should be enough to kill it dead in his tracks.

But hey, he’s a guy, a football player no less, and even though he’s black (as are a disproportionate number of accused), isn’t it far more important to feel badly for the accuser, any accuser as long as it’s a “she,” then consider destroying the guy’s future? Something has to give, right?

Thus far, his accuser has testified that she was too drunk to consent to sex. The video shows otherwise. Then there were the texts.

At the time that a text message containing a kiss emoji was sent to ex-Badger Quintez Cephus by one of two alleged victims of sexual assault, the woman who sent the message was unaware what had happened to her at Cephus’ apartment, according to testimony from the woman Wednesday at Cephus’ trial.

And if that explanation didn’t fly, she had another one.

The woman testified she didn’t know how Cephus got her phone number and doesn’t remember giving it to him. The kiss and heart emojis, she said, she often uses in text conversations with friends and family members.

Everybody gets a kiss and heart, right? But it’s largely a matter of good fortune that the defense has the texts.

On cross-examination, Cephus’ attorney Kathleen Stilling addressed the text exchange and asked why the woman had contacted Cephus and had not shown the text exchange to police detectives initially. She asked whether the exchange was “friendly.” The woman explained she had deleted the texts because “I didn’t want them on my phone anymore.”

While convenient, if far-fetched, it’s possible that the accuser acted for her own peculiar purposes. But there is also a strong possibility that she texted about the sex that she later claimed not to remember to others, and there’s one very clear, very easy way to find out. Except Dane County Judge William Hanrahan refused to allow it.

The defense claimed the prosecutors provided only texts, social media messages and pictures supporting their own argument, instead of other messages with the potential to support the defense’s argument. Instead of searching the women’s phones, the judge accepted the messages the women offered up. The defense requested all cell phone activity records from the 24 hour period around the alleged assault, but the judge denied their request as an obstruction of privacy and decency.

On the one hand, there’s the constitutional right to due process, Brady, Giglio, all the sweet sounding rights that the accused is supposed to enjoy in order to prepare his defense against false accusations.

On the other hand, there’s . . . privacy and decency.

There is no “right” to privacy for an accuser. If you accuse, you cannot conceal the evidence behind a claim that it would expose your personal information. Even worse is the claim of “decency,” not merely a meaningless vagary, but the notion that it’s somehow more decent to convict an innocent man for a crime that never happened.

Fortunately, there remains other evidence creating doubt about the accusation.

Stilling showed the woman surveillance video of herself arriving at her dorm at 2:37 a.m. and making her way to her room. Asked how she managed to key herself into the building and up the elevator without any problems, given what she said her condition was, the woman said it was simply something she had done every day.

Does such extreme drunkenness that reaches the level of incapacity impact things one “simply…does every day”? It would seem finding elevator buttons, finding the keyhole, require a certain degree of awareness, no matter how often it’s done. But here, it’s simple.

After she claimed she “sobered up” and “thought about it,” and decided to get a rape examination following her hearts and kisses emoji text, a urine sample was analyzed.

Jurors also heard from Dr. Karla Walker, clinical laboratory director at MedTox Laboratories in Minnesota, which analyzed a urine sample collected from the woman during her sexual assault examination. The sample, taken about 10 hours after the woman reported having her last drink, revealed a blood alcohol level of 0.068%.

By comparison, the legal limit to drive is 0.08 percent.

While the urine sample failed to bear out her drunkenness, it was also of limited value given the alleged delay and the limited accuracy of urine as opposed to blood analysis. It also doesn’t distinguish between alcohol ingested ten hours earlier and a few shots right before the exam, so there’s no way to tell if this reflects anything about her condition at the time of the alleged rape.

The defense in the case has much to work with, not that it will give Cephus back his football career should the verdict be not guilty. In a climate premised on “believe the woman” rather than believe the evidence, it would be more than sufficient to compel a verdict of not guilty for failure to prove guilt beyond a reasonable doubt.

But Judge Hanrahan’s refusal to order disclosure of affirmative evidence that could prove the accuser a liar, under the guise of privacy and decency, is a facial deprivation of Cephus’ right to mount his defense and due process. While the accuser can take the stand and make excuses, the defense is left without the ability to prove she’s lying. If the evidence is there, then denying it to the defense is inexcusable. There is nothing decent about a wrongful conviction on top of destroying an innocent young man’s future.

10 thoughts on “Cephus Denied Discovery For “Victim’s” Privacy and Decency (Update: Not Guilty)

  1. Christopher Van Wagner

    Scott, thank you for highlighting this incredibly wrongheaded ruling. As Madtown defenders of the same sort of crimes, we here have grown accustomed to seeing the “privacy and decency” of ‘victims’ exulted over all. More to the point, this particular judge has a nickname of Wild Bill, which derives from what has been described accurately as his judicial arrogance and his tendency to flay ordinary people with verbal barrages that while articulate in their extemporaneous presentation leave those facing charges stunned.

    This particular ruling finds no grounding in law, as you note. But the two defenders here are skillful and will hopefully be able to exploit the woman’s decision NOT to share her entire phone contents with cops. Rest assured that the law was given to Wild Bill in clear, accurate and persuasive memoranda. Alas, it is cases like these, where one’s client might well be innocent, that the negative effect of such boneheaded and emotion-based rulings are most often damaging. One can only hope that 12 good people… you know.

    1. SHG Post author

      In a better legal world, there seems no way this case should result in a conviction. There’s doubt all over this case. But then, in a better legal world, this lawless deprivation of discovery would never happen either.

  2. Bryan Burroughs

    So, I guess if I am ever accused of a crime, I can expect the judge not to allow searches of MY phone. You know, in the name of respecting my privacy and decency. Right?

  3. Nathan Freeburg

    As with “victim behavior” experts and affirmative consent standards, this has been standard in military cases for years. She never gives up her phone. They take screenshots of the messages she wants the prosecution to see. Of course sometimes it’s helpful when we have texts and the prosecution doesn’t because they didn’t get her phone.

    This is going to spread.

  4. Michael Cicchini

    The real kicker is that while witness privacy in Wisconsin is elevated above the trial’s truth-seeking function, our pattern jury instruction on the burden of proof concludes by telling the jury “you are not to search for doubt. You are to search for the truth.” As the judge’s ruling shows, however, truth is not the goal. Rather, the jury instruction is just a prosecutorial weapon used to pain the BRD standard as a defense tool for hiding the truth. I’ve tried mightily to get this instruction changed, and some trial court judges do alter the pattern instruction. Hopefully this judge will. But prosecutors, judges, appellate courts, and our state supreme court are hell-bent on keeping the language that instructs jurors not to perform their constitutionally mandated duty to examine the evidence for RD. [Ed. Note: Link deleted per rules.]

Comments are closed.