By Julie DiCaro–
(CBS) On Monday morning, attorneys for the woman accusing former Bull and current Knicks point guard Derrick Rose of orchestrating her gang rape filed a motion to reconsider, asking U.S. District Court Judge Michael W. Fitzgerald to reverse his decision ordering the woman to drop her Jane Doe pseudonym and proceed under her real name at trial. Motions to reconsider, essentially asking a judge to admit a mistake, rarely succeed. However, this motion has a better chance than most of getting the judge to change his mind.
Attached to the motion was a bombshell declaration from Los Angeles Police Department detective Nadine Hernandez, advising Doe’s attorney that a criminal investigation against Rose is open and stating that the ability for Doe to remain anonymous is “an invaluable investigative aid.”
To date, no criminal charges have been filed against Rose or the two men named in Doe’s sexual assault lawsuit. However, Rose’s attorneys have repeatedly maintained that there was no ongoing criminal investigation of their client. Hernandez’s letter flies in the face of that claim and could give the judge a reason to reverse his ruling on Doe’s anonymity, should he be so inclined.
More troubling for Rose is that his gaffes during his deposition testimony, such as saying he believed telling Doe he was coming over with two other men was enough to establish her consent — which Rose admitted he couldn’t define — could all potentially be admitted against him in a criminal trial. That a criminal case is ongoing almost certainly means Rose would have to invoke his 5th Amendment right not to incriminate himself in front a jury in the civil case, which greatly alters his chances at trial.
If his attorneys allow him to testify freely in the civil case, they would be rolling the dice on Rose not saying anything inculpatory on the record. Given Rose’s performance in his deposition, it’s hard to imagine him holding up well under cross-examination.
At Knicks media day Monday, Rose said he hadn’t heard about the criminal investigation. Rose was asked about the criminal investigation and responded, ‘It’s not true. I’ll be found innocent.” Rose also said he could miss time with the team due to the upcoming trial. Why Rose’s attorneys continue to allow him to take questions about the case in front of a microphone remains baffling.
The practical effect of the Hernandez letter is that it increases exponentially the odds that the case will settle before it’s set to go to trial on Oct. 4. Most civil settlements in cases like this one include a clause specifically stating the defendant admits no wrong-doing and precluding the plaintiff from discussing the case going forward. Like the Kobe Bryant case before it, odds are increasing daily that Doe’s suit settles and any potential criminal case simply goes away.
And, as in so many cases of allegations against pro athletes, the public will be left with more questions than answers.