OMAHA — A federal judge dismissed a lawsuit against a state judge who barred the words “rape” and “victim” in court, ruling Tuesday that the accuser failed to prove that he should intervene.
U.S. District Court Judge Richard Kopf also determined Tory Bowen didn’t provide enough evidence to show why her lawsuit against Lancaster County District Judge Jeffre Cheuvront isn’t frivolous.
Kopf quoted baseball great Yogi Berra as he began his ruling against Bowen: “You’ve got to be very careful if you don’t know where you’re going, because you might not get there.”
Bowen, 24, filed a complaint Sept. 6 against Cheuvront, saying he violated her free speech rights by barring the words from the trial of Pamir Safi. She accuses him of raping her.
“Make no mistake, through the vehicle of a declaratory judgment, the plaintiff wants me to jump right into the middle of the pending state criminal case and the upcoming third trial,” Kopf wrote.
Safi, 34, is charged with first-degree sexual assault. He said he and Bowen met at a bar and had consensual sex in October 2004, but she said she was too intoxicated to give consent and that he knew it.
The language restrictions, which also barred the use of the words “sexual assault,” were in effect for Safi’s first trial, in November. Cheuvront said he was concerned that Safi’s constitutional right to a fair trial might be jeopardized if witnesses were permitted to use the words in their testimony.
Bowen testified then for nearly 13 hours and said the ban had a marked effect because she had to pause and make sure her words wouldn’t violate the ban.
Cheuvront declared a mistrial after the jury deadlocked 7-5. He declared a second mistrial in July during jury selection, citing news coverage and public protests on behalf of Bowen.
Lancaster County prosecutors have said they plan to seek a third trial.
Earlier this month, Kopf said he was concerned that the purpose of Bowen’s lawsuit against Cheuvront was to force him to recuse himself from her case. He ordered her attorneys to prove the filing wasn’t frivolous, saying “there is something profoundly disturbing about the notion that a federal judge has the power to tell a state judge how to do his job.”
Bowen and her attorneys responded that they simply wanted what they say Nebraska courts haven’t given: a proper review of whether Tory Bowen’s free speech rights have been violated.
“This case stands in the eye of a perfect legal storm in terms of offering a unique opportunity to resolve an important … legal controversy,” according to the filing last week.
A message left for Bowen’s attorney Wendy Murphy Tuesday wasn’t immediately returned. A message left for Cheuvront’s bailiff wasn’t returned. Judicial guidelines typically bar judges from commenting on current cases.
Kopf said he could not imagine a jury being swayed because a woman uses the word “raped” instead of “some tortured equivalent for the word.”
But, Kopf said, that while he has been on the federal bench for more than 20 years, he has never sat as a judge on an “ordinary rape case.”
The Associated Press usually does not identify accusers in sex-assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge’s language restrictions.