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During deliberations...

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Deliberations are still taking place in the Maldonado/Shultz rape trial, and that the jury has sent out two notes (which usually means requests to have portions of testimony read back, which can only happen when there is a dispute as to what was said, i.e. not just "we want to hear it again.")

The DCCourts.gov website indicates that those notes were filed (with the clerk of the court, presumably) at 12:36 and 1:06pm ET.  And I see a notation that deliberations were paused at 4:45pm ET to continue tomorrow, Friday the 25th.

I will continue to update as I get anything new.


Maggiano's Spinach Salad

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Here's my dupe of the spinach salad at Maggiano's, except I add fried chicken to it for some protein.  You could saute the chicken instead, without the batter (though it is gluten free) or you could add shrimp or chickpeas as an alternative.  Enjoy!

Baby spinach & kale
Balsamic vinaigrette
Boneless skinless chicken breasts- one will be enough for two people
Red onion
Red and yellow bell pepper
Pine nuts
Bacon-- about a slice per person, more according to taste
Gluten-free batter mix
Garlic powder
Paprika
Oregano
Parsley
Salt & freshly ground black pepper
Canola oil
1/2 cup milk or half and half

1. Put the spinach in a bowl with the dressing, stir it up so that the spinach is all covered with dressing before you even start adding stuff.  Chill while you're finishing the rest.

2. Chop up a couple slices of bacon into small pieces and fry them up in a pan until they're crispy; put them on a plate with a paper towel but leave the bacon fat in the pan.

3. Mince red onion about 1/4" pieces and put that in the pan with the bacon grease and sauté until they're soft and translucent.  Drain on a paper towel, leaving the fat in the pan still.

4. Chop up some red/yellow bell pepper into approximately 1/2" pieces and sauté that in the bacon grease just a little bit.  Don't cook all the way to tenderness, you still want some crunch.  Drain on paper towel and clean out the pan.

5. For the chicken you want to use gluten-free batter mix- I get it in the grocery store- and you add to that some garlic powder, paprika, parsley, oregano, maybe a little salt and pepper.  Stir that up and have about 1/2 cup in a shallow bowl or pie plate.  Pour milk or half and half into another shallow bowl/pie plate.

6. Cut up some boneless skinless chicken breasts into tender-sized strips, and dip into milk or half-and-half then pat them into the gluten-free batter mix until well-covered.  Fry the chicken in 1 Tbsp canola oil until both sides are nice and peanut-butter brown.  Drain on paper towel and repeat till you have used up all your chicken.

7.  Clean out the pan and lightly toast your pine nuts over low-medium heat, shaking the pan frequently and keeping a close eye on them because they go from blonde to burnt easily. 

8.  Toss the onion, pepper, bacon and pine nuts with the chilled dressed greens, and strew sliced chicken over the top.  Enjoy :)

No verdict yet.

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10/25/2013Event ScheduledEvent Scheduled
Event: Trial Resumed
Date: 10/28/2013 Time: 9:30 am
Judge: LEIBOVITZ, LYNN Location: Courtroom 202


I wouldn't worry yet.  Deliberations resume Monday morning.  I hear lots of people stressing over how long it's taking... but remember they barely got the case before they recessed that first day and might have needed to get to the next day to even pick a foreperson.

There's two defendants, not just one, so each state's witness had two batches/sets of cross examinations (two different sets of defense lawyers).  I think about twelve charges per defendant (correct me if I am mis-remembering.)  And juries like making charts.  That's a lot of charts!  Plus we know two notes from the jury already meaning they are possibly disputing their recollection of testimony, and getting testimony read back by the court reporter takes time.

I'm not stressed about this.  It's NOT as simple as "hey there's two videos, why not a guilty in ten seconds." I'm delighted when juries take their time.  I want a very well-reasoned, well-debated verdict.

Have a good weekend.

Maldonado and Schultz's charges and possible sentence ranges

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I was originally told  that Maldonado and Schultz were charged with nineteen counts of criminal activity.  I was told at the time that the court website stops at eleven charges, but that is what each defendant's page appears to reflect, and that seems a little odd to me, so let's underestimate rather than overstate.

On Maldonado's case status page at DCCourts.gov you'll see that one charge was filed on the arrest date and eleven more at the indictment making a total of twelve.  It's possible that Charge 9 is a duplicate of the arrest charge-- you can't tell unless you are looking at the actual indictment because it could be alleging different facts, making it two separate charges of the same illegal activity-- but whatever, it's either eleven or twelve charges against Matthew Maldonado.

04/02/2013Charge FiledCharge Filed
Charge #11: Robbery
04/02/2013Charge FiledCharge Filed
Charge #10: Attempted Aggravated Aslt Knowingly Grave Risk
04/02/2013Charge FiledCharge Filed
Charge #9: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #8: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #7: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #6: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #5: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #4: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #3: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #2: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #1: Kidnapping
01/05/2013Charge FiledCharge Filed
Charge #1: Second Degree Sex Abuse- Incompetent

Nicholas Schultz's page reflects the same charges:

04/02/2013Charge FiledCharge Filed
Charge #11: Robbery
04/02/2013Charge FiledCharge Filed
Charge #10: Attempted Aggravated Aslt Knowingly Grave Risk
04/02/2013Charge FiledCharge Filed
Charge #9: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #8: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #7: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #6: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #5: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #4: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #3: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #2: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #1: Kidnapping
01/05/2013Charge FiledCharge Filed
Charge #1: Second Degree Sex Abuse- Incompetent


This is what I was told:
Although the court's website shows eleven felony counts, the indictment actually contains nineteen separate counts– mostly sex offenses, both as principal and as an aider and abettor – but also on kidnapping, robbery and attempted aggravated assault for leaving her lying there on that cold concrete floor.  I'm told by a court official that perhaps the website maxes out at eleven, but nineteen is the real count.

From what I know, there was a plea offer on the table which is "wired" i.e. both guys have to take it or neither can take it.   The offer is that both plead to one count of second degree sexual abuse and agree to a Rule 11(e)(1)(C) sentence of a number of years in prison, some years above the top of the sentencing guidelines for second degree sexual abuse, but some years below the minimum for a first degree sexual abuse conviction under the guidelines (set out below).  This case is charged under D.C. law and is venued in D.C.’s Superior Court.  Rule 11 under D.C.’s rules is basically identical to federal Rule 11, meaning that the terms of a plea under Rule 11 has to be approved by the judge, who also “signs on” to such a plea.  Obviously we're past a plea deal now!

So here is some additional information on the law of rape in D.C.  I got the following from Westlaw, an online legal research service that includes the text of the statutes and laws of Washington DC, and a local attorney's website, Koehler Law.

There are four different “degrees” (levels of seriousness) for the crime of sexual abuse in Washington, DC.  This is in addition to a misdemeanor charge and separate charges related to sexual abuse and children.  There are also separate evidentiary rules for dealing with potential victims of sexual abuse.

While it is a valid defense that the victim consented to the sexual act, the defense has the burden of proving consent by a preponderance of the evidence (that is, more likely than not).  The requirement in D.C. for independent corroboration of a sexual act was abolished for women in 1976 and for members of both genders in 1985.

The D.C. Code defines “sexual act” as:  (1) the penetration, however slight, of the anus or vulva of another by a penis, (2) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus, or (3) the penetration, however, slight, of the anus or vulva by a hand or finger or by any object, with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

“Sexual contact” is defined as the “touching with any clothed or unclothed body part or any object, either directly or indirectly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of another person.”  D.C. Criminal Code 22-3001.

First Degree Sexual Abuse
There are two elements to the crime of 1st degree sexual abuse in Washington, D.C.  The first element is the requirement that the person either engage another person in a sexual act or cause the other person to engage in or submit to a sexual act.  This element is pretty self-explanatory.

The second element addresses the means by which the sexual act is committed.  It could be by using actual force against the other person.  It could be by threatening the person or by putting the other person in reasonable fear that if the person does submit, another person would be subjected to death, bodily injury or kidnapping.  This would cover, for example, threats that a family member could be seriously injured if the person did not submit.  Finally, covering the so-called crime of “date rape,” it could be by rendering the other person unconscious or by administering to that person – either by force or without the person’s knowledge — some type of intoxicant that would substantially impair the people’s ability to appraise or control his/her conduct. (I put that bit in bold because it's an important distinction between first and second degree...)

A person found guilty of first degree sexual abuse in D.C. can fined up to $250,000 and sentenced to up to 30 years imprisonment.  If the prosecution can prove certain aggravating circumstances (for example, that the victim sustained serious bodily injury as a result of the offense), the defendant can be given a life sentence.  D.C. Criminal Code 22-2002; D.C. Criminal Code 22-3020.

Second Degree Sexual Abuse
The first element of 2nd Degree Sexual Abuse in Washington, DC is identical to the first element of 1st Degree Sexual Abuse; namely, that the offender either engages another person in a sexual act or causes the other person to engage in or submit to a sexual act.

Where the two offenses differ is with respect to the second element.  Specifically, a finding of second degree sexual abuse requires the prosecution to prove that the offender threatened or put the other person in reasonable fear or that the offender knew or should have known that the other person was incapable of either appraising the nature of the conduct, declining participation in the sexual act, or communicating an unwillingness to engage in the act.  [This, I think, is most relevant in the NYE rapes.]

The difference between 1st and 2nd degree sexual abuse with respect to this last element is that, in 1st degree, the offender needs to have actually participated in rendering the person unconscious.  In 2nd degree sexual abuse, the offender need merely to have taken advantage of a person who is already unconscious.

The penalty for a person convicted of 2nd degree sexual abuse is a maximum fine of $200,000 and imprisonment for up to 20 years.  D.C. Criminal Code 22-3003.

Third Degree/Fourth Degree Sexual Abuse
While the 1st and 2nd degree offenses address a sexual act (penetration, for example), sexual abuse of the 3rd and 4th degrees address sexual contact (for example, inappropriate touching).  The difference between the 3rd and 4th degree offenses is then the same as the difference between the 1st and 2nd degrees.  That is, 3rd degree involves actual force, threats putting the person in fear of death, bodily injury or kidnapping, or rendering the person unconscious.  The 4th degree offense involves reasonable fear of any type of injury or a victim who is already unconscious.

The penalty for someone convicted of 3rd degree sexual abuse is a maximum fine of $100,000 and up to 10 years imprisonment.  The penalty for 4th degree sexual abuse is a maximum fine of $50,000 and a maximum sentence of 5 years.  D.C. Criminal Code 22-3004; D.C. Criminal Code 22-3005.

Misdemeanor Sexual Abuse
A person can be convicted of misdemeanor sexual abuse if the person engages in either a sexual act or sexual contact with another person when the offender should have known that he or she did not have the other person’s permission. The penalty for this offense is a maximum fine of $1000 and no more than 180 days in jail.  D.C. Criminal Code 22-3006.

NOT ACQUITTED on ALL COUNTS

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Don't believe the misleading gossip please.

EDITED 10/29:  I misread the website on Maldonado; he is facing a lesser-included off the 5th charge, which may or may not mean he's only facing a misdemeanor.  

NICHOLAS SCHULTZ:  Jury returned verdict on almost all counts.  Presumably acquittal but it doesn't say for sure.  Still deliberating on a misdemeanor sexual abuse charge and second degree sexual abuse (see my previous blog post for definition and punishment ranges.)

10/28/2013Event Resulted - Release Status:Event Resulted - Release Status: NO BOND. Jury returned verdicts as to all counts at 1:00 pm with the exception of the lesser included to count 4 (now Misd-Sex Abuse) and count 5 remains open for deliberation. Jury instructed to resume deliberation tomorrow at 9:30 on the remaining count. Defense motion to modify bond to personal recognizance is hereby denied by the court.
AUSA: Peter Taylor
Court Reporter: Susan Walker
The following event: Trial Resumed scheduled for 10/28/2013 at 9:30 am has been resulted as follows:

Result: Trial In Progress
Judge: LEIBOVITZ, LYNN Location: Courtroom 202
NICHOLAS SCHULTZ (Defendant (Criminal)); ; Ms NIKKI U LOTZE (Attorney) on behalf of NICHOLAS SCHULTZ (Defendant (Criminal)); Judge LYNN LEIBOVITZ

04/02/2013Charge FiledCharge Filed
Charge #5: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013Charge FiledCharge Filed
Charge #4: First Degree Sex Abuse- Force With Aggravating Circumstances


MATTHEW MALDONADO:  Jury came back with verdicts on all but one charge, presumably not guilty, and he was released on personal recognizance bond.  Jury will continue deliberating on second degree sexual abuse tomorrow morning.

10/28/2013Event Resulted - Release Status:Event Resulted - Release Status: PR PSA. Jury returned verdicts as to all counts at 1:00 pm with the exception of the lesser included to count 5 remains open for deliberation. Jury instructed to resume deliberation tomorrow at 9:30 on the remaining count. Defense motion to modify bond to personal recognizance is hereby granted by the court.
AUSA: Peter Taylor
Court Reporter: Susan Walker
The following event: Trial Resumed scheduled for 10/28/2013 at 9:30 am has been resulted as follows:

Result: Trial In Progress
Judge: LEIBOVITZ, LYNN Location: Courtroom 202
MATTHEW MALDONADO (Defendant (Criminal)); ; Mr RICHARD A FINCI (Attorney) on behalf of MATTHEW MALDONADO (Defendant (Criminal)); Judge LYNN LEIBOVITZ


04/02/2013Charge FiledCharge Filed
Charge #5: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances

Look.  Ninety-nine percent of what you're reading on sherdog, underground, facebook etc is boolsheet.  It's propaganda from the families or friends of the defendants who don't know how to interpret or understand what they hear, are told, etc.

Prosecutors charge every which way they can think of to capture the possible interpretations of what happened.  Why?  So that what happened to Lloyd Irvin doesn't happen to them!  So that a jury can't let someone go for "attempting" something if they don't think he actually could get it up.  So here you see a variety of different phrasings -- was it rape by force? rape by intentionally getting her drunk? rape by taking advantage when she was drunk but you didn't get her drunk? etc etc.  Some of these charges are mutually exclusive with others.  Either he got her drunk or she was drunk already but you can't have both, see? so:

STOP FREAKING OUT THAT SOME CHARGES WERE ACQUITTED.  (That's fine! not the end of the story!)

STOP FREAKING OUT IN GENERAL.

AND STOP BELIEVING WHAT IDIOTS OR EVEN SMART PEOPLE LIKE ME SAY... what is REAL is what is on the DCCourts.gov website.  And if you don't read everything carefully you will misunderstand and run around like a chicken with your head cut off screaming THE SKY IS FALLING THEY WERE ACQUITTED. 

JUST CHILL.

(and to all the Maldonado supporters like Jarjar Binks et al who are writing such nasty stuff to me-- STFU, I'm not publishing any of your comments.)

Maldonado acquitted of all charges.

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10/29/2013Event Resulted - Release Status:Event Resulted - Release Status: Jury returned a verdict of not guilty as to remaining count. Defendant has no further obligations to the court as it relates to this case. Co-Counsel Ty Kelly
AUSA: Peter Taylor
Court Reporter: Susan Walker
The following event: Trial Resumed scheduled for 10/29/2013 at 9:30 am has been resulted as follows:

Result: Trial Held and Completed
Judge: LEIBOVITZ, LYNN Location: Courtroom 202
MATTHEW MALDONADO (Defendant (Criminal)); ; Mr RICHARD A FINCI (Attorney) on behalf of MATTHEW MALDONADO (Defendant (Criminal)); Judge LYNN LEIBOVITZ

10/29/2013Case Disposed - Jury Trial Not GuiltyCase Disposed - Jury Trial Not Guilty
10/29/2013Charge Disposed - Jury Trial Not GuiltyCharge Disposed - Jury Trial Not Guilty
Charge #5: Sex Abuse- Misd


DANG it.

Jury still deliberating on Schultz.

10/29/2013Event Resulted - Release Status:Event Resulted - Release Status: NO BOND. Jury deliberated from 9:40 am to 4:45 no notes submitted on this case. Jury to resume deliberating on tomorrow at 9:35 am.
AUSA: Peter Taylor
Court Reporter: Susan Walker
The following event: Trial Resumed scheduled for 10/29/2013 at 9:30 am has been resulted as follows:

Result: Trial In Progress
Judge: LEIBOVITZ, LYNN Location: Courtroom 202
NICHOLAS SCHULTZ (Defendant (Criminal)); ; Ms NIKKI U LOTZE (Attorney) on behalf of NICHOLAS SCHULTZ (Defendant (Criminal)); Judge LYNN LEIBOVITZ


I am SICK at heart.  I've heard many theories but without having been there I cannot report any facts.  All I can say is -- the jury was asked to assess the state's evidence against the highest standard of proof namely beyond a reasonable doubt.  A not guilty verdict is a comment on the confidence the jury had that the state proved every element of the offense(s).  It doesn't mean the jury found him innocent.  It doesn't mean the jury said no crime occurred.  It doesn't mean the jury didn't believe the survivor.  Until and if I can speak with the prosecutor, who hopefully gets feedback from the jury when it's all over, I won't know anything useful about WHY the jury felt this was appropriate.

Everyone is asking about transcripts of the trial.  Transcripts cost a LOT of money (the court reporter takes hours to turn her little stenography machine papers into words on a page) and so they don't get prepared for every case.  If you are acquitted the State cannot appeal the verdict and so there will be no transcripts.  If Schultz is convicted and IF he appeals, his defense will get transcripts (either he pays or if he's indigent, the State pays) and then the State gets a copy for a slightly lesser cost.  And then maybe somewhere down the road the transcripts might be publicly available if you pay for copying or can get a courtesy copy *wink*.  So that's the scoop-- transcripts will be a month or two at best.

I've also gotten questions about a sex offender registry.  Here is a link thanks to David Wolf regarding the DC Sex Offender Registry.  And here's the link to the National Dept of Justice Sex Offender Registry.

I'm just sick.

Quick mid-deliberation update on Schultz

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10/30/2013Jury Notes FiledJury Notes Filed @ 10:30 am (Winter Instruction given)

Hmm.  My Google-fu and Westlaw-fu did not turn up anything termed a "Winter Instruction."  But

EDITED:
Edited on October 31 to add: just received an email saying this below is NOT the Winter instruction. What WAS given the jury was a basic Allen charge, aka an instruction to break a deadlock. This was from an attorney watching the trial. I'll post more later today.
a friend in federal practice emailed me the citations.

Excerpt text reads: "Evidence of a defendant's reputation, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt, since you think it improbable that a person of good character in respect to those traits wold commit such a crime."

U.S. v Pujana-Mena, 949 F.2d 24, 27-32 (2d Cir. 1991); U.S. v. Winter, 663 F.2d 1120, 1147-49 (1st Cir. 1981).

As of 1991, "The District of Columbia Circuit is the only circuit still requiring a “standing alone” instruction in all cases in which a defendant offers character evidence. See United States v. Lewis, 482 F.2d 632, 637 (D.C.Cir.1973)"

But I read Pujana and it seems to go the other way-- like the standalone instruction is NOT required.  I am still reeling and trying to do the legal research, I'll edit and add analysis when I sort out the issue, but I'm getting on a plane this evening so it might be a separate post tomorrow.

"He was a nice boy who went to church. He'd never rape anybody." Case closed!  (From CG)

"Jury acquits man of rape on video tape because he seems like he wouldn't do that" (From RJ)

Will keep you posted.


Schultz trial resumes deliberations tomorrow

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10/30/2013 Event Scheduled: Trial Resumed Date: 10/31/2013 Time: 9:30 am Judge: LEIBOVITZ, LYNN Location: Courtroom 202 Happy Halloween, folks.

correction regarding the jury instruction yesterday

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Received an email this morning from an attorney watching the trial. The charge to the jury did NOT contain that character evidence instruction of the previous post... instead it was a basic Allen charge, aka instruction to break a deadlock. Will advise as more info becomes available.

An eyewitness account of the surveillance camera video

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From Aaron France, DC cop and BJJ brownbelt... this can be found on the BJJ sub-reddit and virally all over the web, really:

 "I have a few things to say about the Maldonado acquittal. First, the idea that juries are always correct, even when presented with very clear video evidence is a fantasy. I remember the Rodney King trial. They were initially acquitted by a jury, but when tried in federal court, they were convicted.

This leads to the next point; there is a difference between an acquittal and a summary dismissal or a finding of no probable cause. Prior to these two being arrested, Detectives had to investigate the case, a Lieutenant or higher had to sign off on the affidavit that they drafted in support of an arrest warrant, a section chief or deputy section chief of the US Attorney's Office had to review the affidavit and (in most cases) the video of the offense.

From there, a Judge read the facts of the affidavit, swore the officers to the fact that it was true and accurate, and signed it. After they were arrested, the two were presented for arraignment. An assistant US Attorney read the facts of the case to a Judge, and a defense attorney made an argument as to why they should have been released. The judge held them based upon the nature of the charges.

After that, a third judge held a preliminary hearing, where he found probable cause. He then heard arguments as to why they should be released, and denied that.

Then, a grand jury had to indict the two of them. 20 people had to sit in a room and listen to evidence about the case, and decide if there was probable cause.

That's a lot of people who are capable of saying "this doesn't seem right" before it's even brought to trial. I didn't sit through most of the trial. I had the opportunity to drop in every now and then, while on down time during other trials and court matters that I had to attend. I did get to see a few things, and at one point during all of this, I had the opportunity to view the surveillance footage of the garage.

What I saw was deplorable. The video depicted Schultz and Maldonado carry the victim into a parking garage. They brought her over to a wall of the garage, removed her pants, and had sex with her. I will keep some of the details to myself, but one of them was in front of her, and one of them was behind her.

During this, one of them hands her a phone, which we later learned was used to capture a video where the victim is heard telling them to stop. At a certain point in the video, Maldonado leaves, and Schultz continues. As I recall, Maldonado briefly returned, at which point Schultz was kneeling over her, forcing her into oral sex. She turned her head away numerous times and at one point Schultz drops her head onto the pavement. After that is said and done, Schultz leaves.

The victim is laying on the pavement, half-naked, at 3 am, when it was 38 degrees outside. Metropolitan Police Department Officers found her because someone heard her yelling for help, after being alone on the pavement for something like 40 minutes. None of this is speculation. This is my recollection of the video, which I viewed with my own eyes. I do not believe that either of them are innocent, or that they were falsely accused.

There has been a very small subset of people acting as an advocate for Maldonado's "innocence" claiming that he believed this was a consensual encounter. Ask yourself; if this happened to your wife, your daughter, your girlfriend, your sister, or even a close female friend, would you advocate Maldonado's innocence? Most of you would be calling for blood. Some of you would even take it yourselves.

So if we were to look at Maldonado's behavior, put criminal implications aside and give him the benefit of the doubt, here's the best thing we can say about him... He had sex with a woman who was intoxicated to the point where she could not walk, and afterwards he treated her like a piece of trash, by leaving her half naked on the cement floor of a parking garage, in the middle of the night, when it was barely above freezing. And that woman? She was his "teammate." Not many people outside of the Brazilian Jiujitsu Community can comprehend the bond that develops between training partners, due to the level of trust that training partners are required to develop in each other. ...

Yet there are a few people who believe that we should let him back into the Brazilian Jiujitsu community. These people believe that he should be allowed to continue to sharpen his skills, learning to choke people and cause their joints to stop functioning. They apparently believe that he should be allowed to do this in the presence of women and children. How can you possibly ever trust this man not to just hang onto a choke, or not hold an armbar after you tap? He's already demonstrated a propensity to do what he wants with another persons body, why should we believe it ends with sex?

Realistically, I know that he cannot be kept out of every gym in the country, and he'll probably be back on the mat by the time the weekend rolls around. So how can I make a difference?

What I can do is boycott any product that sponsors him and let them know why. I can hold up any sign I want at any tournament he's competing at. I could, if he decided to train at my gym, choose to give someone else my money (we'd never have him). I can do whatever I can to make him and those who support him feel uncomfortable. There people in this world that I am afraid of, and Maldonado is not one of them.

Remember, your outrage doesn't have to end today. Stay loud, my friends."

Q&A on the trial and videos-- part one

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Been deluged with questions here and by email and on facebook so I will try to answer them one at a time. Here is part one! Pretty much the overwhelming theme I get is as follows: How could a crime like that be on video and those fellas not be found guilty? How can Aaron France give one account and the pro-defense people give another, of the same video?

YES, so frustrating that "eyewitness accounts" aren't more consistent. Welcome to the problems of ... eyewitness testimony! Everyone filters through their own worldview, it seems. Especially if they're watching something like this. OTOH I don't think necessarily someone/anyone is being dishonest.

People see what they know how to understand and stuff that's over their head or outside their box doesn't register or get remembered. People focus on stuff that scratches an emotional itch-- whether they want to justify a preexisting belief or shore up an argument or what have you. It can be entirely subconscious in fact. You and I would likely have to watch the tapes 6-7-8 times to glean most, not all, of the relevant data... once or twice just to take it all in, then another time or four with a notepad... sometimes to see it for State's evidence, sometimes to predict the Defense argument... etc. People who only saw it once (in pretrial motion practice for example) or twice (that plus trial) will likely not gather all the relevant data in their heads much less remember it. They may not even know what is legally relevant.

I received a series of emails from someone identifying themselves (by first name only so far) as a defense lawyer who watched the trial. I am not going to censor but I am trying to verify her identity first just to be as professional as I can with this journalism.

Anyway, she described for me her take on the video and why she believed a jury could find consent depicted in it. It started me thinking and so I'm sharing those thoughts even before I feel like I can share the content of her description.

Just dealing with one small fragment of what this this viewer described as the survivor moving her body in a certain way as evidence of consent. That is a definite physical movement [xxx]. But there are many layers of interpretation going into that description. Was it volitional movement? was she swaying from intoxication or fatigue or momentum from his force? was she moving moving backwards towards something behind her versus away from something in front of her? LOTS of ways to interpret what is seen-- not even really getting into WHY the movement happened.

Then if you KNOW what the movement really was, the MOTIVE for the movement is still not crystal clear. Let's assume the survivor moved, and moved towards the assailant, volitionally and not for any other reason like swaying from fatigue or intoxication... let's say for argument's sake moving her body closer to his.... the next step the viewer may take is to assume that this means the survivor was consenting. But not to be too graphic-- I'll just say that in my years of experience as a sexual assault crisis counselor meeting survivors in emergency rooms immediately post-assault, I have heard more than one survivor say that the most painful part of rape is the sawing back and forth, and that they tried to move closer to avoid as much of that motion as possible.

So, the framework of the audience will play a huge role in the interpretation. If you are watching to establish a list of reasons you could claim consent (i.e. if you're New Defense Attorney come to watch Heavy Hitters Showing How It's Done) then you will see movement where there is none... or you'll see movement towards penetration instead of swaying from drunk fatigue, as examples, and then that movement will register in your mind (like the so-called minds of the Phil Proctor-esque idiots yammering on the internet) as "backing it up."

Another example makes it clear that the difference of interpretation doesn't have to be intentional-- there's ignorance too. If the viewer has never been blackout drunk before, or terrified, or assaulted, they won't know that the survivor might not have even been aware she had a cell phone much less have the presence of mind to call 911 during these events much less have the courage (or stupidity?) to do it while passing in and out of consciousness or in fear (for her life?) or even just trying to dissociate... so this viewer may see not calling for help as consent instead of drunkenness/unawareness/focus on violation/fear.

Not trying to defend that viewer's perspective so much... just realizing all the slips 'twixt cups and lips, as they are also going to plague the jury. Our job as lawyers is to EDUCATE at least one juror so they can educate and influence the rest of the jury-- give them a candle to light the way out of the cave, so to speak. And seeing this as a black and white "someone is lying" picture is not always as helpful in that educational process...

Tomorrow I'll address the comments I see on the sub-reddit about Aaron France's statement.

Thanks for reading.

Paul Thomas Jiu Jitsu [EDITED- May not welcome] sex offender Nick Schultz

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EDITED TO ADD (On Nov 4th)-- according to Alvis Solis, today:
"Alvis Solis
I talked to Paul Thomas today via phone and he promises NOT to allow Nick Schultz. He had kicked Nick out for other things a long time ago and I reinforced that decision for Paul. He should be making a public announcement soon"


Nick Schultz used to train with Paul Thomas Jiu Jitsu of Katy, TX (now called Katy Jiu Jitsu) before going to Team Lloyd Irvin.  And now I am told (by someone reporting to me a verbal conversation had with Paul) that Paul Thomas is willing to welcome Nick back, should he be acquitted in DC and need a training home.


Paul has some odd opinions and ways of expressing them.

https://www.youtube.com/watch?v=mQCSfutpjAU

https://www.youtube.com/watch?v=q-za5PF80OU

http://www.ebaumsworld.com/video/watch/81738048/

(Don't worry, I downloaded those videos.  So if they get pulled from the inter tubes, let me know.)

Here are some posts on various forums about Paul:

http://www.mixedmartialarts.com/?go=forum.posts&thread=1854724&forum=11

http://forums.sherdog.com/forums/f12/paul-thomas-bjj-laughs-unconcious-kid-1761671/

http://forums.sherdog.com/forums/f12/paul-thomas-bjj-laughs-unconcious-kid-1761671/index14.html

And, some screen shots sent to me by an anonymous source.



 So-- I'm not saying any of the events reported here are true-- only that they have been reported.  However, until Paul Thomas chooses to disavow the primary issue-- that he would welcome Nick Schultz back with open arms-- I think it's relevant to ask why not, and make this public information (and inquiry)....

As a result I asked him to comment, tonight Saturday Nov 2nd at 10pm central... let's see what he says.



Thanks Kitsune for your public pressure:

"Public service message: Paul Thomas Jiu Jitsu and Kickboxing MMA school (Katy, Texas) has indicated that Nick Schultz (the guy who raped a teammate at TLI and left her semiconscious on a cement parking lot in the middle of a winter night) is welcome to come back and train there (he has trained at Paul Thomas before). Please help spread the word that Paul Thomas Jiu Jitsu Kickboxing MMA welcomes dangerous and immoral asswipes onto its mats to troll for their next victims among its students and their families.  Please also indulge me as I will be using this blog on an ongoing basis to publicize schools and sponsors who support rapists. We need to get this out into the light where everyone can see."

Lloyd Irvin caught MISREPRESENTING his role in the IBJJF

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Lloyd posted on facebook implying that he was helping the IBJJF write the new rules for next year:


Of course, this was misleading at best.  The IBJJF acted quickly, for once, to distance itself from Lloyd.



'Natch.

Celebrating Maldonado's Not Guilty? [EDITED]

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I'm just wondering why people are celebrating Melo-donado's not guilty....

I've heard Lucas Lepri removed his post cheering the acquittal, though Adam's page is private now and I can't see for sure.

[EDITED TO ADD: several of his students have contacted me... and one had contacted me at least a day before I posted this... to strenuously assure me that Prof. Lepri had misunderstood what he was commenting about and had immediately retracted his comment.  I would like to note that I did not take this screen shot, nor did I make the red circle around Prof. Lepri's name.  However, I needed the screen shot because I wanted to share my disappointment that a woman, dating a former medal chaser, was applauding Melo-donado's acquittal.  So I used the screen shot and hoped that me saying Prof. Lepri had retracted it was sufficient.  Apparently some people were angered that he would even make such an error and wanted to still attribute bad intent to Prof. Lepri.  I have no reason whatsoever to think this is merited and because I trust the word of the three students who assure me still that he is not a rape apologist in any fashion, I am whiting-out his name on the picture below.  PLEASE do not look down on Prof. Lepri for his "typographical" error, thank you.]

I also see Keenan Cornelius's girlfriend cheering about it.





This is how they react to opposition...

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There's an old joke around the courthouse.  When the law is on your side, pound on the law.  When the facts are on your side, pound on the facts.  And if neither are on your side, pound on the table.

Well, when the facts aren't on your side, Lloyd's little minions make insults about age, intelligence, status in BJJ, and virtue. I guess I'm happy they don't think I'm ugly?

Today, on facebook:



And yes, that whole baloney "Georgette cheated" blackmail thing apparently has a believer.... Jason Selva of Alhambra California (check out his very Lloydie website.)




This is what they did to the NYE rape survivor. Oh look, let's call her a whore, then no one will believe her.  This is what Jason Selva did by accusing me of cheating on my husband when he reposted that baloney "cheater report" website on facebook.

The "cheater" story doesn't even get basic facts right (I don't cheat on my husband, he isn't abusive, I'm not a DEA agent) and it used a picture that was public and all over the internet, facebook, my blog, etc.  I originally thought all the blackmail threats were connected to me outing a local instructor who is a registered sex offender.  Maybe it was Lloyd or a minion all along?



Nicholas Schultz released on PR bond, two misdemeanors are all that remain...

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11/04/2013Event Resulted - Release Status:Event Resulted - Release Status: PR.

Jury started deliberations at 9:50 a.m. Jury returned verdict on Felony Count 7 but not lesser included. Two misdemeanor sex abuse counts remain. Jury to resume deliberation tomorrow at 9:30 am.

AUSA: Peter Taylor
Trial Resumed scheduled for 11/04/2013 at 9:30 am has been resulted as follows:

Result: Trial In Progress
Judge: LEIBOVITZ, LYNN Location: Courtroom 202
NICHOLAS SCHULTZ (Defendant (Criminal)); ; Ms NIKKI U LOTZE (Attorney) on behalf of NICHOLAS SCHULTZ (Defendant (Criminal)); Judge LYNN LEIBOVITZ


Jury hangs on remaining misdemeanors, Schultz granted a mistrial.

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The jury came back hung (couldn't agree) and so the court declared a mistrial.  The case has been continued so that the prosecution can decide how it wants to proceed.

Don't freak out, don't jump to conclusions.  Take a deep breath and let's think about how best to see positive change come out of this.  I'll be in touch.

More shameful rape apologetics-- UPDATED AGAIN

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Thanks Michael Dill and Reed Shelger and JR Gore -- your opinions, including that the rape survivor wanted a threesome and was later beaten up by her boyfriend prompting her to "save face" with her "cry's [sic] [of] rape" dishonestly, are profoundly disturbing and ignorant of the FACTS revealed on videotape and testified to under oath by other witnesses....

Let me interject a big, sincere apology to Alex Weatherford... I was editing this post late at night and was not being as careful as I should have been.  While I highlighted your statement because it is an example of the phrasing that implies that two men taking advantage of a woman in a vulnerable [aka intoxicated] position is something less than rape, I readily admit that I was wrong to include your name with Dill/Shelger/Gore.  Please accept my apology!!

Remember everyone-- a not-guilty is not "INNOCENT." A not-guilty means the prosecutor did not present enough proof.  It doesn't mean the survivor lied (and hey, she'd have to be pretty good to corrupt the surveillance camera footage AND Mateo's cell phone footage AND decide to lay naked on the cold concrete for almost an hour just to be more persuasive.)



EDITED TO ADD: Tonight Reed Shelger emailed me as follows:

"Please remove my name from your blog immediately.  I do not appreciate being called publicly a rape apologist.  I have never even met you, and you need to keep my name off your blog.

Thanks."
I declined.  More of our communication after this new screen cap:

His reply to me: "It isn't true because it wasn't rape.  I do not condone rape."  and "Calling my comments rape apologetics implies that I was defending rape.  My opinion is that rape did not take place (which was supported by the jury who had access to the evidence).  Again, you can have your opinion.  Please leave me out of it."

By now, Reed has deleted some of these offensive comments:


And here's some more comments I found amazing:





But Reed... purple belt at Paradigm Training Center in Houston...  

Your comments were accurately reported.  Yes? 

The screen shots were unaltered.  Yes?

You don't need to agree that she was raped to have participated in rape apologetics.

Just thinking that someone "sucking dicks in parking garages at all hours of the night" means what happened to her is okay-- HELLO RAPE APOLOGETICS!


What are rape apologetics? [EDITED]

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To say that someone is not a rape apologist because"they don't support rape" is an empty statement.  It's a straw man.  NO ONE SUPPORTS RAPE OUTWARDLY.  But their attitudes towards survivors end up supporting rapists just the same.

 From RationalWiki:

"Rape apology or rape apologetics are umbrella terms for any arguments suggesting that rape is infrequent, misreported, over-reported, not that big a deal, or that it is even excusable in some circumstances, such as within a marriage or if the victim was provocatively dressed. 'Apology' in this case means defense or justification, like in Christian apologetics, and not a statement expressing regret."

Rape apologists (like "The Truth Be Told," Michael Dill and Reed Shelger) may accuse women of misreporting rape, or "crying rape" to get what they want. Accusations of rape against partners or other acquaintances are sometimes disbelieved by others and perceived as a spiteful reaction to some other grievance.

Statistics, however, show that rape is dramatically under-reported.

Rape apologists contend it's not rape if...

...it's not "forcible"

Rape apologists frequently refer only to "forcible" rape when condemning rape or proposing legislation relating to rapes and their consequences. This explicitly excludes statutory rape, which is the only legitimate reason that the term "forcible rape" even exists. It implicitly excludes rapes committed with date-rape drugs, along with many marital rapes and those committed by people the victim knew, because those rapes are apparently less rape-y than the stranger-in-an-alley scenario, which is statistically less common.

 ...or if she asked for it!

The victim can be alleged to be either a promiscous whore who dressed like a slut or, more generally, put herself in a dangerous situation; if young, be a temptress and manipulative Lolita who was dressing, looking and behaving older than her chronological age: just ask some judges in Montana, lawyers in Texas or Polanski supporters.  Or ask a regular commenter on this blog, "The Truth Be Told," who commented after this post:

"Get your hands on the video and you will recant everything you wrote about her being left there. She didn't want to leave. she was upset about what happened with her "So called" boyfriend, who under testimony called her a booty call, snubbing her at the club and not paying any attention to her. So, what does she do? she goes around the club showing off her assets and then approaches him later on and punches him in the face. This is her testimony. If you are going to report get it right."

Another way to trivialise -- and implicitly normalise rape -- is to recharacterise it merely in terms of "rough sex" or "a gangbang" or euphemistic terms which take the emphasis off uncomfortable words like "rape" or "assault", and remind the reader or listener that, "hey, it's just sex, right?" The message is pretty clear: rape's not such a big deal, but you should just put up with up and get it over it.

Worries about false rape allegations are pretty much statistically bunk.  Maybe 2-8%.  The 8% comes from the FBI which is recounting "unfounded" cases.  This statistic is almost meaningless, as many of the jurisdictions from which the FBI collects data on crime use different definitions of, or criteria for, "unfounded." That is, a report of rape might be classified as unfounded (rather than as forcible rape) if the alleged victim did not try to fight off the suspect, if the alleged perpetrator did not use physical force or a weapon of some sort, if the alleged victim did not sustain any physical injuries, or if the alleged victim and the accused had a prior sexual relationship. Similarly, a report might be deemed unfounded if there is no physical evidence or too many inconsistencies between the accuser's statement and what evidence does exist. As such, although some unfounded cases of rape may be false or fabricated, not all unfounded cases are false.  (Gross, Bruce (Spring 2009). "False Rape Allegations: An Assault On Justice". Forensic Examiner.)

Very few people would be so motivated by some other factor that they would willingly subject themselves to the hell that is rained down upon rape survivors. While our culture often makes reporting a rape worse than the rape itself, when it comes to male victims, it’s damned near impossible to report at all.

For those who stubbornly wish to believe that bitches be lyin’, I can point them at studies. I have before and will again. Or I could have them read this story.  [CONTENT NOTE FOR THAT LINK: Massive trigger warning for graphic description of violent sexual assault and horrific treatment by law enforcement.]

Now, some of them will say: “That’s just an anecdote.” And that is true. It is just one data point behind the 2-8%. Since we are Good Skeptics, we know to look beyond anecdotes.

So let me add in a study of police attitudes toward rape victims. It would seem EEB (in that story above) isn’t alone, then. And if we could factor in the victims who never reported at all because of stuff like this, that “false” rape allegation statistic would drop like a rock. Since they don’t, the statistics are skewed, making “false” allegations look more prevalent.

Now add the horrific treatment victims experience from defense attorneys who believe they’re scum. I can tell you from experience this can be worse than the rape. It can be a form of torture, and like torture victims, some rape victims will recant just to make the pain stop. Magically, their allegation is now “false.” But they’re no less raped, and the rapist is no less a sexual predator.

Add in the fact that some rapists have a lock on society or community and can crush their victims (potentially like this case, if the poor girl wants to keep training-- think about her walking into an academy and wondering if a training partner is thinking she's a whore, a liar, a bitch.) If their victims had the courage to report, they’ve soon got their buddies to sweep the crime under the rug. And another several ticks are added in the “false” rape allegation column.

Add in children who receive such a terrifying reaction to their attack that they recant just to protect themselves. More “false” rape allegations.

What about victims who aren’t supported by friends and family because many cultures make it easier to believe the victims are filthy, disgusting, crazy liars rather than people suffering from sexual assault? I think you know what happens to the statistics by now.

Add in the fact that some police departments don’t make a distinction between “reports that are actually, genuinely, provably false” and “reports that can’t be prosecuted due to statute of limitations, lack of evidence, or some other reason, but no doubt the victim was assaulted.” Both numbers end up counting under “false” allegations, although a sizable percentage weren’t false at all.

Add in about a trillion circumstances I haven’t remembered to include. Compare that to the enormous number of rapes and sexual assaults.

The reality is that false rape allegations are a tiny bit of flotsam on a sea of rape. Even if that 2-8% number were accurate, it would still be far too small to use to discount rape allegations out of hand. The fact that even that tiny percentage is inflated by cases like EEB’s should ensure that every decent human being treat survivors’ reports as provisionally true. The idea that most or even many rape allegations are false is an extraordinary claim requiring extraordinary evidence. Those who continue to insist otherwise have forfeited any right to be considered good people.

To be fair, here's a thought-provoking article titled Five Things To Consider Before Calling Someone a Rape Apologist.

BUT here are what I see as the leading apologetics about the acquittals in the NYE rape case:

1.  Those poor boys' lives are ruined.
2.  It's just buyer's remorse.
3.  She should be prosecuted.

People saying that garbage just don't get that losing a criminal prosecution doesn't mean the jury thought a witness or any witness lied.  It's not a finding that the complaining witness was perjuring herself.  It doesn't mean the jury believed no rape occurred.  It simply means the prosecution didn't persuade the jury beyond a reasonable doubt.

The boys' lives are not ruined except for the fact that they now think they are the persecuted victims, and they now know mistakes not to make should they ever choose another foray into crime.

The concept of this being a false claim of rape due to morning-after regret is disproven by the videotape showing her being dropped on her head while blacked out (hard to argue she wanted that or was not too intoxicated) and the testimony that she was left unconscious and naked on the cold concrete (not the typical way to leave your willing sex partner.)

There are mechanisms in place to penalize those who lie on the stand... they're called perjury prosecutions.  Just because those idiots were acquitted doesn't mean the survivor lied.  Get over it.

Upcoming Seminars by Hillary Williams to Benefit Sexual/Domestic Violence Survivors

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Hillary is putting on a few seminars with all proceeds going to local organizations supporting survivors of sexual and domestic violence. She says, "The idea is much more important than me, so I hope others will do something at their gyms as well."

Rackmultipart

Sun Nov 17
Edmond OK
United Martial Arts 12-3pm
 Donations only: proceeds to YWCA, non perishable items to the Infant Crisis Center

Sat Dec 7
Seattle WA
Info coming soon

Sat Dec 14
Richmond VA
 Richmond BJJ Academy 11-2pm
Women's Open Mat 2-3 pm
Donations only: proceeds to YWCA, NVRDC

 Hillary is a certified bad*ss and world champion, phenomenal instructor, and has amazing insights into strategy and gameplans too. Please attend if you can.

 Her thread announcing this found here, I would imagine updates will be posted there as well.
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