When does no, mean no?

Discussion in 'Ethics, Morality, & Justice' started by Bells, Oct 12, 2010.

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  1. Bells Staff Member

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    Information has come to light, about a date rape case, in 2005, which was refused by the then Prosecutor, Ken Buck.

    In discussing the case with the date rape victim, Mr Buck appeared to lay the blame squarely on the victim and told her directly that the case was not winnable and he thus, refused to take the case. Unbeknownst to him, the victim had legally taped their conversation. Unfortunately for him, the information has now been made public.

    Some facts of the case... The victim alleged that her ex boyfriend had raped her while she was intoxicated. The alleged rapist admits to having had sex with her and sexually touching her in her home, even after she had said no and even though he knew she was drunk (as he reported to the police, that he recognised she was quite intoxicated and he had seen her like that before). Here is a part of the police incident report in questioning the alleged rapist:


    Here is what the police recommended at the time:

    So where did this case go wrong? Reading through that, it looks fairly cut and dried. The alleged rapist even admits to having sex with her after she said no and even as she said no. He admitted to sexually assualting her, even after she said no.

    So why refuse to take this case. To attempt to understand this utter disaster, we should take a look at what Mr Buck actually said to the victim when he questioned her about the assault.

    The transcript of that conversation can be viewed here:

    http://coloradoindependent.com/wp-content/uploads/2010/10/Ken-Buck-transcript.pdf

    You can also listen to the actual taped conversation here:

    http://www.huffingtonpost.com/2010/10/12/ken-buck-refused-rape-victim-case-audio_n_758890.html

    But lets have a quick look and break it down. Firstly, when he discusses why, in his mind, he does not think that this case is worthwhile. It seems Mr Buck has a bit of an issue with date rape. In his conversation with her, he virtually accuses her of inviting the assault and that because she had had sex with the man in the past (they had been in a relationship in the past), that it would be difficult for him to prove to a jury that she had not consented to sex. Keep in mind that the alleged perpetrator admitted that he knew she was drunk, that she had said no several times, and that he felt so bad about what he had done to her that he had told her he was sorry for what he had done and then admitted to feeling shame and regret about it.

    At one point in the conversation, the victim confronts Mr Buck about what the perpetrator had said in the police report and asks him to explain to her how it was not rape. She challenges him about why he thinks their having been "bedfellows" in the past somehow means that she had consented, even though the perpetrator admitted that she had said no several times and had attempted to push him away. It seems that Mr Buck has issues with the fact that she had invited him into her home and also has issues with the fact that they had had sex before:

    Victim: His statement says, “When he finished, … (reading police report)… tried to get the victim to wake the victim up so he could apologize.” How is that not “physically helpless, meaning unconscious, asleep, or unable to act” (legal code)

    (139) KB: Because when you look at what happened earlier in the night, all the circumstances, based on his statements and some of your statements, indicate that you invited him to come to your apartment… that you told him how to get in …. It would appear to me and it appears to others that you invited him over to have sex with him. Whether that you, at that time, were conscious enough to say yes or no... ?

    (147) V: So you’re telling me that previous sexual relations is enough to provide consent, and you’re telling me that because of me calling him and because of previous sexual relations and because I invited him up and told him how to get in, that invited him up for sex...

    (153) KB: I’m telling you that’s what the circumstances suggest, to people,
    including myself, who have looked at it. Although, you never said the word yes, but the appearance is of consent.




    http://coloradoindependent.com/wp-content/uploads/2010/10/Ken-Buck-transcript.pdf


    "Never said the word yes"? She said no, several times.. Anywho..

    As someone who has been involved in countless rape and sexual assault cases, I quite literally facepalmed when I read this transcript. This is should have been cut and dried. Hell, a first year law student would have been able to get a conviction based on the man's confession. But this is not the end of it. There is more in that transcript that suggests that Mr Beck may have a personal view or belief about the victim and indicates something that, well, you'll have to see for yourself to believe.

    After the victim challenged him about his flimsy reasons, which basically amounts to blaming the victim for her own rape, for refusing to prosecute the case, he then makes a comment about the victim and her past, which is troubling at best. Now, as has been mentioned, the victim had, in the past, been involved in a relationship with her alleged rapist. He then goes on to warn and threaten her in case she decides to pursue this further.

    (255) KB: Be aware of something, if this, if you file this motion, it will be very public, publicly covered event. There are a lot of things that I have a knowledge of, that I would assume (name of possible suspect redacted) knows about and that they have to do with, perhaps, your motives for (unintelligible) and that is part of what our calculation has been in this.

    V: I’m interested to hear more about that, my motives, for what this has been.

    KB: You have, you have had HIS baby, and you had an abortion.

    V: That’s false, that’s just false.

    KB: Why don’t you clarify?

    V: I did have a miscarriage; we had talked about an abortion. That was actually year and a half ago. So …

    (268) KB: That would be something that you can cross-examine on, that would be “something that might be a motive for trying to get back at somebody.” And it would be a (unintelligible). And it’s part of what we have to take into account whether we can prove this case or not. And there are a lot of things that, um, you know, for as why weren’t not prosecuting the case. We’ve got to weigh all that, and it not something that I feel comfortable with, but something I have to be.

    (274) V: I would be interested in you actually bringing that up with me, actually being honest with me as to why you’re not willing to take this case. Instead of dancing around, you know, what you’ve told me because if there are other things, I would be interested in hearing them...

    KB: I don’t appreciate your inference that I’m not being honest with you. I’m taking the time to meet with you. I’ve had prosecutors review … I’m being absolutely honest when I say “Totally of circumstances, I don’t believe that we can prove this case.” That the …?

    (280) V: So you’re looking at the fact that I had a miscarriage with his child, and what else? Give me more information, because I’m really interested in knowing the totality.

    KB: That’s part of it. And part of it is, when you describe yourself as “bedfellows” and you did indicate that you were “bedfellows” and “it’s hard to
    convince a Weld County jury that this wasn’t consensual, when that is your label. So there are those kinds of factors. This office doesn’t believe in (blaming the victim?) for the conduct of the case but, we do have to take into account what a weld county jury sees in the relationship. You had consumed a lot of alcohol. You had a prior relationship. According to him, you were naked from the top up when he came into the bedroom. So, there are enough indicators or (indications?) that in my opinion make this impossible to prove beyond a reasonable doubt.



    In other words, even though she had said no, that even the perpetrator admitted she had said no, that because she had had sex with the man in the past (they had not apparently spoken for a year before this incident), that because he, Mr Buck, believed the perpetrator about an alleged abortion that she denied having, the fact that she was very drunk and according to the perpetrator, semi-conscious and at times unconscious when he sexually assaulted her and then raped her... she was not raped.. Ermm yeah.. makes sense if you exist in some sick and twisted reality..

    What is worse, Mr Buck advised that he had spent 2 hours reviewing the case and the police report before he decided that he would not take on the case.

    Now, Mr Buck is against abortion, even in cases of rape and incest, something he has publically stated in the past, which makes this even more revolting, as he actually went on to accuse her of having had an abortion.. Over a year before.. Ermm what the hell?..

    There was a temptation to start this in the Politics forum and I am sure Tiassa may end up moving it there regardless. But I wanted to discuss the ethics behind his reasons.

    In 2006, Mr Buck described the case quite insultingly:

    District Attorney Ken Buck told the woman he could not press charges against her attacker, despite the man's admission to police that she said no. Buck said he must only prosecute cases in which he has a reasonable chance of convicting someone, and this was not one of those cases.

    "A jury could very well conclude that this is a case of buyer's remorse," Buck said.



    http://www.greeleytribune.com/apps/pbcs.dll/article?AID=/20060301/NEWS/103010095&parentprofile=&template=printart


    Buyers remorse?

    Even the perpetrator admitted that she had said no and had rolled away from him. And that he had continued to touch her and then sexually assault her before raping her. He admitted she was not fully conscious during the rape and he had to actually "get her more conscious" so that he could speak to her to apologise for what he had done. What buyer's remorse? He even went on to refer to the facts of this case as pitiful.

    Mr Buck advised that he had sent the report and his assessment of it to others to try to assertain whether they agreed or not. He then advised that they agreed with his assessment to refuse to prosecute the case. However, the victim stated she also showed the case and the report to 3 other lawyers, all of whom could not understand why Buck had refused to prosecute:

    The article then goes on to say that Mr Buck seemed to have seen the light after this case and approached rape victim advocates for advice. All well and good, but it still does not excuse his behaviour towards this victim and his refusal to take on the case.

    So when is "no", actually "no"? The perpetrator recognised she had said no and even apologised and said he felt ashamed and regretted what he did immediately afterwards, even to the point of trying to get her to regain consciousness to apologise.. The police, in their initial report, recommended that he be prosecuted for what he did and what he had admitted to in the incident report. Mr Buck, on the other hand, decided that it was not worth his time and then went on to accuse her of not only inviting her own rape and sexual assault, but then threatened her about going public and to make matters worse, accused her of having an abortion...

    Should he, as a prosecutor, have allowed his own personal feelings to cloud his judgement? I'd say no.

    But when is no, actually no? And do you think he should have prosecuted the case back in 2005? Was he ethical in refusing to take on the case?
     
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  3. Trooper Secular Sanity Valued Senior Member

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    I feel that it was unethical to refuse to prosecute and he should have taken on the case.

    No Means No
     
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  5. John99 Banned Banned

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    Cases where the two parties involved, knew each other (sexually) and were intoxicated are hard to prosecute. Unless there was physical marks or death involved. Dont get intoxicated.
     
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  7. visceral_instinct Monkey see, monkey denigrate Valued Senior Member

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    Motherfucker raped her. End of. Lock him up. No and rolling away means NO.

    Jesus how much does it take to convince someone that NO really means NO and not 'I want you, but I'm playing hard to get?' Some of these sick fucks, you could stab them in the liver and they'd take that as 'She wants me'.
     
  8. Bells Staff Member

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    So his confessing does not mean anything in this case?

    That is the thing about this case. The individual confessed and said that she had said no. He advised that she was no conscious or fully conscious during the act.

    Are you saying John, that even with all of that, in Buck's case, you would also refuse because there were no physical marks that we know of and she was not killed?

    You say that this case involved two people who had had sex in the past. Are you aware that a husband can be found to rape his wife and vice versa? That once she says no, it is no? That having sex with someone who is so drunk that they are passed out = rape regardless?

    I have to admit, what got me about this case, the killer for me, was when he accused her of having had an abortion and used it as a threat in case she did go public. That is inexcusable.

    To me, that transcript and listening to that conversation, he acted more like the perpetrators attorney, instead of acting like the Prosecutor he was at the time. He was virtually defending him while accusing her of not only inviting her own rape, but also of having had an abortion over a year prior to the rape and that the abortion was the motive for her to have 'cried rape' or 'suffered from buyers remorse'.
     
  9. adoucette Caca Occurs Valued Senior Member

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    I would hesitate to use the transcript to castigate the Prosecuter.
    One of his jobs is to challenge the defendent, as the defense will do in court, to see how she responds, so things he challenges her with are very likely to be framed from the point of view of what he expects the defense would do.

    As he said: "he must only prosecute cases in which he has a reasonable chance of convicting someone, and this was not one of those cases".

    Meaning if you already have the hurdle of convicting beyond a reasonable doubt and you also apply to that the requirement of having a "reasonable chance of convicting", then a prosecuter isn't likely to bring any cases to trial unless he vets the victim to get a good idea of how they hold up under the pressure of uncomfortable questions and allegations of consent.

    Apparently he wasn't convinced that this was one of those cases where he felt he had a reasonable chance of winning.

    Certainly there are facts that suggest that might be the case (previous consenual sexual relationship, drunk defendent, self described "bedfellows" would all weigh against the ability to get all the jurors to accept "beyond a reasonable doubt")

    But is that the criteria a prosecuter is supposed to meet?

    Or, as I've heard (I've got zip experience with the Criminal Justice system) that the system is so overloaded and the schedules are so full that DAs cut deals as often as possible and really only take a tiny fraction of cases to trial, and this is just an example of what that equates to, that a good percent of victims will never get a chance to face the accused in court?

    Arthur
     
  10. Lori_7 Go to church? I am the church! Registered Senior Member

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    i'm sure i'll get a rash of shit for this, but imo this woman's lack of sense and responsibility was contributory. what in the hell was she doing shitfaced drunk and alone in her home with her ex-boyfriend?

    i had a situation like this happen to me about a decade ago. i was a 30 something year old woman with plenty of experience with alcohol and men. nobody forced those 12 or so beers down my throat and nobody forced their way into my house. by the time i realized what was happening it was too late.

    it would have been very easy for me to play victim and put all the blame on the man, but i couldn't do that in good conscience.

    i think they're equally at fault.
     
  11. John99 Banned Banned

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    Bell, being intoxicated is where things get shady. Compounded by the fact that they were lovers, the combination of the two will put doubt into the minds of any jury. The main one being where the victim is unconscious from being intoxicated. The problem is: you get intoxicated then invite your ex lover home who you had some bitterness towards, perhaps resentment and the jury begins to question what is really going on here.

    No. Rape is a very serious matter. My own feeling is severe punishment for rapists but this case is not as serious (or really circumstances are different) as your average rape case and for violent rape i advocate no release from prison.

    Absolutely. Though we are talking about a case where the only witness was semi conscious or even unconscious at times. A case like this is very hard to prove. Unless the other person admits to the wrong doing then i say absolutely he was 100% wrong.
     
    Last edited: Oct 12, 2010
  12. Bells Staff Member

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    If that was the case, certainly. But the meeting was to inform her of his reasons for not prosecuting the case. The decision had been made before she entered that room. The meeting appears to be her wanting to speak to him to find out why.

    So he was not challenging her as practice for when she faced the defense attorney in court. He challenged her and accused her as a reason for refusing to take on the case.

    Could very well be. But for one little thing.

    The perpetrator confessed. He described in fairly explicit detail what happened and when she had said no. As per his statement, she said no and rolled over, away from him, when he first touched her sexually. A few moments later he resumed touching her and then proceeded to have sex with her, by which time she was semi-conscious and that she had regained consciousness after he climaxed inside her and again said no.

    This is cut and dried rape. For several reasons..

    She was highly intoxicated and semi-conscious (can't give consent if you're passed out), she had said no twice in the moments that she was not unconscious. He knew and understood that and apologised for what he had done to her immediately afterwards.

    Ah, but that is the thing.

    He used his own personal beliefs in saying that he did not think the jury would have convicted. In other words, he projected his own personal beliefs about sex and abortion upon the proposed jury pool and said that in his opinion and as far as he was concerned, they would not convict - in short, he disregarded the confession of the accused and based his refusal purely on his own personal beliefs about sex and abortion.

    This was a slam dunk case. You have a confession from the accused, given to the police. There is no implied consent, quite the contrary, there is explicit non-consensual sex in that she said no, rolled over and away from him and she was not in a state to even be able to consent, even if she had not said no.

    Based on what?

    Remember, this was not a Prosecutor priming the victim to appear on the witness stand. This was a meeting to discuss his reasons for refusing to prosecute.

    So what did he base this on? His accusation that she had had an abortion? Which, I may say is completely irrelevant because she had admitted to having been in a relationship with the accused prior to this assault. So why mention the accusation of the accused that she had had an abortion, which she denies? Why then go on and accuse her of having had an abortion? Did he base it on the fact that she was overly drunk? - Does not make sense since that level of intoxication would amount to rape as she would have been unable to consent having not been fully conscious at the time and that drunk.. Did he base it on the fact that she invited him over? Again.. husbands have been found guilty of raping their wives, so this is really a moot point. He accused her of being semi naked in her room when the accused walked into the bedroom and she was half passed out on the bed... It was her bedroom. I am often naked in my bedroom, as I am sure the greater majority of people often are. Again, this does not imply consent. In fact, everything as stated by Buck and by the accused in his confession point towards rape and sexual assault.

    What do you think it should be or could have been?

    You have a confession from the accused and explicit and detailed version of events, and his admitting that she said no twice and had physically rolled away from him.

    Do you think that date rape is not rape?

    Do you think that when a woman is semi-conscious to unconscious, that she is fair game for sex and it means she has consented?

    What if she turns to you and says no? Does no not really mean no when a guy is about to have sex with a woman?

    What other criteria should this case have met exactly?

    We know that women are most often raped by men they know (spouse, relative, boyfriend, ex spouse/boyfriends, or just men they know in general). So your personal criteria that because she had sex with him in the past when they were in a relationship seems to indicate that it is not rape, amongst other things, is not a valid point in proving she was not raped.

    I'll put it this way. Once she says no, then that is when it is meant to stop. If it continues after that point where she has said no, then it is rape. Pure and simple. Plus, if she is not conscious enough or coherent enough to consent, which she was not, then it is also rape. HIs having had sex with her a year before that night is irrelevant. He could have had sex with her 10 minutes before and it would still be rape. Do you know why?

    1) She said no.

    2) She was so drunk that she was semi-conscious to unconscious.

    Or it could be that he felt she somehow invited her own rape and that in his mind, it should not be prosecuted not only because of that, but because he believes the accused's accusation that she had had an abortion over a year prior to the rape occuring and he believes that is motivation for her "having buyers remorse".
     
  13. Trooper Secular Sanity Valued Senior Member

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  14. John99 Banned Banned

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  15. visceral_instinct Monkey see, monkey denigrate Valued Senior Member

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    It doesn't matter if she went out in nothing but a loincloth and blue Celtic markings on her tits. Choosing to rape someone is choosing to rape someone, and it is always, always a crime.
     
  16. Bells Staff Member

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    So, in your opinion, his confession means nothing because she was drunk at the time?

    He admitted to raping her and then admitted he felt so bad about it immediately after, he tried to get her to regain consciousness to apologise to her for what he had done to her.

    What part of that don't you quite grasp? What part of his admitting and confessing that she had said no and he did it to her anyway is a grey area to you John?

    So you don't think sticking a finger and then penis in a woman's vagina, against her explicit consent and when she is unconscious is a violent act?

    If he'd slapped her around a bit first, that would qualify for you?

    Right.

    She was unconscious and semi-conscious during the whole thing. He was sober and conscious enough to recognise that and he then sexually assaulted her and then raped her, after she had said no, while she was in that semi-conscious and unconscious state.

    There is nothing to prove John. He confessed. Or did you miss that part?

    He confessed to touching her vagina and he confessed that she said no and rolled over and away from him. He confessed that a few moments later he touched her vagina again and again penetrated her with his finger, before raping her with his penis and climaxing inside her. He confessed that she again said no when he climaxed. He confessed that he then realised what he had done and withdrew from her. He confessed that during the whole thing she was lapsing in and out of consciousness. He confessed that he then managed to revive her enough so that he could apologise to her.

    So what exactly is there to prove here John?

    Oh, a rash of shit doesn't even come close to it Lori.

    Tell me, where was his sense of responsibility when he jammed his finger into her vagina and she said no and then decided to do it again and then rape her when she was unconscious?

    So because you, it seems, were raped when you were 30 something, it gives you the right to blame her for her own rape, a rape that even the rapist confessed to and admitted to?

    She's at fault because he decided to take advantage of her being drunk and not conscious half the time? She's at fault that she said no and turned her back on him and he then resumed to rape her after she'd lost consciousness?

    What if she'd been drunk in a bar and he'd met her there and taken her outside and raped her against her explicit consent and while she was unconscious? Would she have also been at fault then?

    Tell me Lori, when is a woman not to blame for her own rape?

    So your sex was consentual? You'd said "no"? You'd tried to shove the man away and he ignored you and kept on going?

    You're telling me that if you'd said no and tried to push him away and then lost consciousness, it is still your fault because you were drunk in your own home with a man you'd been involved with and thought you knew him enough to trust him to be in your house with you while you were that drunk? Tell me Lori, I take it you are never drunk in the presence of your husband? What about male relatives and friends?
     
  17. John99 Banned Banned

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    Bell, we are getting one side here. I cant say from sitting reading (without interviewing the people involved) exactly what transpired. I cannot prosecute people from 9 thousand miles away if you do that then this is not fair justice.
     
  18. Lori_7 Go to church? I am the church! Registered Senior Member

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    i don't think this had anything to do with what she was wearing. i'm not condoning what the man did at all. i'm just saying that her actions contributed to the crime. it seems clear that if she had been responsible, and not put herself at risk, this would have never happened.

    do you not agree that getting shitfaced drunk and inviting a man who you know damn well wants to have sex with you into your home while alone is completely irresponsible and contributory? i think prosecutors have to consider these things.

    i considered those things in my own experience.
     
  19. Bells Staff Member

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    Very interesting.

    Thank you for that.

    The last paragraph of the study makes this even more interesting. He does not believe her. The transcripts make that quite evident.

    But it does not answer one vital component to this and she keeps asking him and he keeps not answering that particular point, instead choosing to repeatedly lay the blame on her.

    The vital point being the confession of the accused, where he details quite explicitly what happened and what he did and he also gives a very distinct and explicit description of the victim's state during the whole ordeal.
     
  20. Anti-Flag Pun intended Registered Senior Member

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    How intoxicated was HE, both at the time, and when he made the confession?
    Aside from that I'd say this should have gone to trial, but only due to the confession which he could probably find an excuse to retract, and there isn't anything else to go on. Character 'assasination' is a normal part of most trials and has been known to change the outcome, the prosecutor seemed worried about that - could his thoughts be justified?
    I do wonder if some facts are missing, did she say yes too? Was she trying it on with him and saying 'no' (ie giving off mixed intentions, which I think was one point the prosecutor mentioned but with rather flimsy evidence)?

    Not saying I agree with him, but there may be other things to consider.
     
  21. Bells Staff Member

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    I'm sorry, but where does it say that she knew he wanted to have sex with her in her home at that time? Remember, this is not about you. So can you show me where it says she knew he wanted to have sex with her? Have a link?

    And that still does not mean that it is not rape or "date rape". She said no. She was that intoxicated that she could not have consented anyway. That right there says rape.

    But please, link where she said she knew he came to her house wanting to have sex with her... especially in light of the fact that they had not spoken for a year prior to the assault..
     
  22. John99 Banned Banned

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    The problem is that he is not explicitly detailing what happened. She cannot explicitly detail what happened because she admits to being unconscious. These are bad witnesses to have and unfortunately hard cases to prove.

    Did they both go into the house and take their clothes off?
     
  23. adoucette Caca Occurs Valued Senior Member

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    So what? The same logic would prevail, if I'm trying to convince her why I'm not going to prosecute I'm going to give her a dose of what she would get on the stand at the hands of the defense and I'll point out how their previous relations and her self description of being "bedfellows" was going to be real problematic to winning the case.

    I said NOTHING at all about whether he was guilty or not, only on the likelihood of a conviction. Can you keep to the argument I actually made?

    Convicting 12 jurors beyond a reasonable doubt with the facts as laid out here seems to me to be not that likely. The defense would likely have a field day with this poor woman on the stand and from what I understand, it is exactly this kind of case, that convictions are the least likely.

    Arthur
     
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