Law Talk: Legal Troubles of Trevor Bauer, Act 1

Keeping everything separate was working swimmingly. Sure, the streams were eventually crossed to defeat Gozer, but that scenario occurred in a movie, there’s no real-life equivalent of —

“Eric…I have to do a thing…do we have a legal department? A lawyer who advises himself is objectively a bad lawyer.”

Before I rip this figurative bandage off, this entire essay is going to start with some procedural history. Back in early February, the Los Angeles County District Attorney did something quite foreseeable, they declined to file charges against Trevor Bauer:

The Los Angeles County district attorney’s office will not criminally charge Los Angeles Dodgers pitcher Trevor Bauer after investigating allegations of sexual assault against him, the Los Angeles Times reported on Tuesday.

The district attorney decided there is insufficient evidence in the case to “prove beyond a reasonable doubt” that Bauer committed a crime, the Times reported. The investigation by the Pasadena police department has been open for five months.

A San Diego woman said Bauer had two sexual encounters with her that turned violent at his home in Pasadena last year. Bauer has been on paid administrative leave since the allegations in late June.

I then wrote up an essay that both explained what this news meant and explained some legal terms the same way I explain legal terms to my clients. I even threw in some Spongebob and LA Law references that made sense in context but are wildly inappropriate now. Just as I was about to submit this essay for editorial review, Trevor Bauer decided to post a seven-minute rant on YouTube that ruined a perfectly good mood. And then this essay had to stew, like a fine bouillabaisse. So let us break it down.

What did the LA District Attorney’s decision mean?

As is now well-known, the LA District Attorney declined to press charges against Trevor Bauer for his alleged conduct stemming from two sexual encounters with Ms. X [I know her name is out there, I’m not using it until a civil case is filed or until she voluntarily reveals herself to the public at large] back in 2021. Now I know what you might be thinking:

Does the District Attorney not charging Trevor Bauer mean that he is innocent?

First, to be clear, Trevor Bauer was, is, and remains innocent of any criminal charges as to a court of law relating to this incident. This statement applies to everything that was alleged or investigated by the Pasadena Police Department and considered by the Los Angeles County District Attorney for all alleged criminal activities in this case. The burden of proof is on the government to prove any alleged criminal conduct beyond a reasonable doubt. That fact is as true today as it was yesterday or back in early February or even last year.

But, what does that mean – what IS reasonable doubt?

That question is also a fair question. Let us refer to the CALCRIM Jury Instruction 220 for the California definition, because you, like most lay folk/potential jurors, only what they likely know about reasonable doubt from what they have seen on TV. As I ranted about in the Chris Taylor Postmortem, most TV depicts law badly, but that’s a story for a later day:

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

Therefore, if the government meets this burden, then the jury should come back with a guilty verdict at a criminal trial. If the government fails to meet this burden, then the jury should come back with a not guilty verdict at a criminal trial.

Note that the reasonable doubt standard is a far more burdensome standard than say the preponderance of the evidence standard used in most civil hearings in California. The preponderance standard is “more likely than not, even a feather’s weight more than 50% belief. I could post the CALCRIM instruction, but there’s no need to do so right now given the current status of the case.

However, it is worth noting that the “preponderance of evidence” standard in a civil case is far more forgiving to the Plaintiff than the “reasonable doubt” standard is to the government in a criminal case. The thinking behind that distinction is the belief that it should be as difficult as possible for the government to take away one’s personal liberty, i.e. their freedom from incarceration/forfeiture of money, etc.

Recap of this case:

There has been no criminal trial between the State of California and Trevor Bauer relating to this incident and based on what occurred, there likely never will be.

There has been no arrest of Trevor Bauer relating to this incident, and based on what occurred, there likely never will be.

As to any potential jeopardy regarding Trevor Bauer’s freedom, such as it is, there is just been an investigation and a decision not to prosecute the case in criminal court. That summary, as they say, is it.

That summary would also have been the end of the story…except Trevor Bauer decided that the day that the LA District Attorney declined to prosecute was the moment to start being a YouTuber again.

Trevor Bauer: YouTuber…again.

My own personal feelings about Trevor Bauer aside, in this case, it is worth letting the man speak for himself. The following video is what he posted the day of the LA County District Attorney’s decision. Admittedly, the video is rough to watch, and I would not blame you if you skipped it.

(Warning: seven+plus minutes of self-aggrandizement, in my opinion, by someone who likely doesn’t know the first thing about BDSM, humility, decency, etc.)

So I watched that video, I ground my teeth and swore extremely loudly. In fact, I’ll let Armin Shimerman as Quark say what I felt then.

For those of you who (wisely) did not click on Bauer’s link, let’s rely on the transcript from ESPN, who did the dirty work for me:

“[My accuser] chose to stay the night, both times, and left the following day without any incident or concern. And when she left, she certainly did not look anything like the photos that were later attached to her family court declaration and circulated by her lawyers to the media. While this is not the time, nor the place, to address every single lie or falsehood that this woman or her lawyers made to the court, I do want to be crystal clear about a few things: I never punched this woman in the face. I never punched her in the vagina. I never scratched her face. I never had anal sex with her, or sodomized her in any way. I never assaulted her in any way at any time. And while we did have consensual rough sex, the disturbing acts and conduct that she described simply did not occur.” [emphasis added.]

If I were Trevor Bauer’s lawyer (don’t you dare put that evil on me), I would be absolutely fuming, probably ranting at my immediate supervisor who would beg/cajole/order me to not call up my hypothetical client and call him a dumbass for twenty minutes. If the Bauer legal team had an ounce of empathy or two ounces of self-awareness they would likely have the same reaction the Dodgers’ brain trust probably did when the news first broke about this whole affair.

To be fair, it is worth taking a moment to point out that the Dodgers are wholly responsible for bringing Trevor Bauer into the fold. They had no obligation to sign him. Just remember, we all were this close to the following sentence: Trevor Bauer has signed with the (LOL)Mets. We were an afternoon from peak baseball meme-dom. This situation is why we can’t have nice things.

In part, that’s why I did not want Dave Roberts extended as manager due to his handling of the media during the Washington series last year when the le affair de Bauer began. The Washington Nationals’ Davey Martinez showed how you can be respectful to players’ due process rights and privacy while reacting like an actual human being in the face of credible allegations of sexual assault. Dave Roberts botched his handling of the media about as poorly as one can without getting fired, in my humble opinion.

Both the Bauer legal team and the Dodgers did this to themselves – that’s the power of self-delusion. “Trevor Bauer will behave himself with me. Other people can’t do it, but I can.” Frankly, it’s a lesson learned too late, but it’s worth stating loudly now:

Why I would be screaming in this hypothetical is that my hypothetical client has now said and posted a freaking internet video statement that seems to cut against his legal defense team’s strategy that was argued in open court in his own defense. In other words, in this hypothetical, if I were representing Bauer, now Ms. X’s lawyer, if they so choose, now have access to both the Bauer team’s legal arguments made in civil court during the restraining order hearing AND this video. And any competent civil litigator would use that to come after Bauer with the righteous fury of a thousand suns provided there was an active lawsuit.

The Analysis of the Restraining Order Proceedings

Rather than type out my own summary of what occurred back in 2021, I will defer to the excellent prior coverage done by Sheryl Ring at Beyond The Box Score, which was why I have essentially kept my mouth shut until now because she summarized the case more succinctly, passionately, and better than I could:

This next part is incredibly graphic, using testimony from the hearing. Reader discretion is advised – again.

“[Trevor Bauer’s attorney Shawn] Holley also asked several questions about text messages that the Petitioner “just wanted d***” from Bauer (right after talking about how she wasn’t slut-shaming her). Holley also had this exchange with the Petitioner:

Holley says Bauer stopped when he put his fingers down her throat, and she objected, waving her hands.

“You were capable of telling Trevor something that you didn’t want to happen?” Holley asked, which [Petitioner] said “yes” to.

“You say you were unconscious and when you came to he was having anal sex with you?” the attorney asked.

“Yes,” she said, before clarifying that no lubricant was used. Holley said that [Petitioner] told Bauer to stop, so he did.

Holley asked if [Petitioner] had her period during that time, to which she said no.”

The main analysis, I have separated into a pull quote for ease of emphasis:

This colloquy is devastating for Bauer. Holley is attempting to show the court that the Petitioner could have said no to Bauer’s actions. However, the Petitioner’s testimony that she did so after Bauer already started putting his fingers down her throat, and further did so via a movement she could not make whilst unconscious, buttresses the Petitioner’s version of events.

Ms. Ring concluded this point as follows on August 18, 2021:

“To be clear, Bauer’s defense here may well work insofar as this hearing is concerned, if Holley and Fetterolf are able to persuade the judge that Bauer’s conduct will not be repeated because his conduct is limited to instances of sexual encounters – and to that end, they have done a pretty good job. As such, I came away from today thinking that Holley and Fetterolf’s strategy is this:

1. Argue that the acts in question are confined to sexual encounters and that there was and is no continuing relationship; as such, no restraining order is necessary.

2. Use that victory, even though it is based on a limited point, to argue in the media that Bauer is vindicated and that the Petitioner must have been lying because they won the hearing.

3. At the same time, show potential other victims what they face by challenging Bauer, using cross-examinations that focus on past sexual histories that grab media attention.

4. If Bauer does end up suspended, use the victory in the order of protection case and the media narrative to push him as the victim.

As such, Ms. Ring pointed out that the civil cases take longer than criminal cases and she argued that the Bauer legal team likely weakened Bauer’s position as to civil trial based on the above analysis. Furthermore, she argued that the Bauer team would use the above-numbered framework as public relations strategy going forward.

And if you are wondering how Trevor Bauer can argue one set of facts in a long-form Restraining Order hearing and yet argue something completely different in a YouTube video, then, congratulations, in my opinion, you have shown more logical consistency than Trevor Bauer or anyone representing him.

The Aftermath of the Denial of the Permanent Restraining Order

And as we now know, the Court did not grant the Permanent Restraining Order, because the Court held that Bauer was unlikely to recontact Ms. X. Then the Court started talking about consent, which has and had nothing to do with the underlying reason for the hearing, the Permanent Restraining Order. Talking about the scope of consent is more appropriate in a civil litigation setting where the question of actual liability is being discussed.

And that checklist, as Ms. Ring pointed out, has pretty much been the Bauer team’s PR strategy from that day on in my view. “There’s no restraining order, therefore Bauer is vindicated. Clearly, Bauer is vindicated because the accuser was lying because of [money]/[plant by another team]/[etc., etc.]”

As to any civil liability exposure for Trevor Bauer, that question remains an entirely open matter. Most Civil tort cases in California have a statute of limitations of two years from the date of injury. In fact, going back to the Restraining Order hearing last year, the argument from Trevor Bauer’s side was not “I didn’t do this / The injuries weren’t caused by me,” it was “What occurred what was consensual / my accuser didn’t set clear boundaries / I wasn’t planning on seeing my accuser again,” which is a world of difference as to an argument, especially when one considers a civil suit.

But doesn’t the fact that the Court denied the Permanent Restraining Order exonerate Trevor Bauer?

No – absolutely not!

If a jury in a civil trial or a judge in a bench trial focused on the question of whether Trevor Bauer caused injuries to Ms. X as alleged and came back with a verdict in Bauer’s favor, then and only then, could he claim total vindication. As unpopular as this view might be, in my view, the Judge got it right when she denied the Permanent Restraining Order. There was no indication that Trevor Bauer was attempting to contact Ms. X or was harassing Ms. X or that there was any indication he was imminently going to do so. Based on what was presented at the hearing, Ms. X and Trevor Bauer had two encounters and there was no further contact for weeks after their last sexual encounter. A Permanent Restraining Order is supposed to be used for someone where there is evidence that imminent harm is coming or that they refuse to leave you alone, even with a valid Temporary Restraining Order in place. If there is no contact and no risk of future contact, a Permanent Restraining Order is not appropriate. If you wish to litigate what occurred during those two encounters, the best way to go about it, even in the absence of a criminal prosecution, is to sue in civil court, because you can confront your alleged attacker directly with an easier burden of proof to carry the day.

That argument that the denial of the Permanent Restraining Order is somehow an exoneration of Trevor Bauer is exactly what I am lashing out against. If you need something to point at as to what the Permanent Restraining Order hearing was about, look no further than the following tweet:

As you can see the only questions that the Court considered were whether Trevor Bauer was likely to cause Ms. X future harm or whether Trevor Bauer was going to have future contact with Ms. X. That’s it. Any assertion to the contrary, in my opinion, is either conflating what the judge actually ordered to suit a narrative, at best, or is simply bad lawyering, at worst. The Bauer legal team implicitly conceded the question of whether Trevor Bauer actually caused Ms. X’s injuries at the hearing. But you don’t have to take my word for it. Oh, and there is some salty language here, so fair warning.

Now maybe, this entire affair goes away – that is entirely up to Ms. X. And if she can achieve closure with no further action, then, more power to her. She would be a better person than I am in that situation. And if she wants to venture into the civil side of the California legal pond, again, she has that right and more power to her. I lived in that pond for two years. I even had more hair then.

While Trevor Bauer may not be in any further criminal jeopardy, he likely opened himself up the door wider on any civil jeopardy he faces by going on YouTube and ranting that he is the real victim of this entire affair! (the link goes to his timestamped whine.) And that state of affairs is where things left off, as this essay effectively sat in essay purgatory, while life moved on. I figured the situation would sort itself out prior to the season starting.

Here is the original conclusion I wrote to this essay:

The fact that no charges are going to be filed does not mean that Trevor Bauer is exonerated.

The fact that no arrest has occurred is imminent or is even likely based on the publicly available information does not mean that Trevor Bauer is exonerated.

Much like the fact that a judge denied a permanent restraining order in the civil side of the case does not mean that Trevor Bauer is exonerated.

As stated above, he was, is, and remains innocent as to a court of law.

As to the unofficial court of public opinion, that’s entirely a different matter. We all saw the photographs, we can come to our own conclusions.

As to MLB’s administrative process, that’s entirely a different matter. MLB could, should, and likely will drop the hammer on Trevor Bauer for the massive embarrassment he’s caused baseball and the Dodgers.

But then, that hammer did not fall. Instead, we woke up right back where we started.

We’re all Bill Murray now

But much like Bill Murray in a certain classic movie, we all can’t seem to wake up from this nightmare. Once again, Trevor Bauer was put on administrative leave – again. Stop me if you’ve heard this song.

One week on administrative leave turned into one month on administrative leave in 2022. And then, Trevor Bauer’s stay on administrative leave was further extended to April 22, 2022. Per the LA Times article on April 13, 2022, the expectation is that Bauer will be suspended and never pitch for the Dodgers again. But those who truly know are not saying, and those that do not know will not stop talking.

The ongoing 2022 delay did not make any sense to me. This investigation is not unraveling the insurrection of January 6th, which has more layers than the most onion-y onion that ever onioned. The Bauer investigation is focusing on interactions between two people over a period of a couple of months if even that. According to the LA Times, Bauer was considering challenging the validity of the MLB’s decision to place him on administrative leave. Apparently, the Bauer legal team has served a subpoena to the Pasadena Police Department for Ms. X’s phone records.

Bill Shakin, Los Angeles Times, March 17, 2022:

[Trevor Bauer and/or his legal team] later requested the Pasadena police department supply cell phone records that his attorneys argued in court filings could illustrate the woman’s intentions to “ruin [Bauer’s] reputation and career and to earn a large paycheck by making false and misleading allegations.”

The woman’s attorney has asked that the subpoena be thrown out. A hearing on the matter is scheduled for April 4.

Mr. Shakin is not quite correct in his description of the method. The Bauer team is using a subpoena, which is arguably problematic at first glance because typically you only use those during an active lawsuit. The Permanent Restraining Order was denied almost seven months ago.

Bill Shakin, Los Angeles Times, March 26, 2022:

Bauer’s attorneys have told the court they believed the records could show how the woman implemented “a plan to seek rough sex so she could later seek to profit.” In the hearing on the restraining order, the woman’s attorneys denied she pursued the case for fame or money.

Moreover, the Bauer legal team argued that Ms. X was abusing the Restraining Order process in California, and as such, they should be entitled to recover attorney’s fees. The article continued:

…Bauer’s attorneys subsequently provided the court with a letter from the city attorney in which Pasadena agreed to turn over the phone records on the condition the court would determine which ones were relevant and provide appropriate confidentiality….

[emphasis added.]

Per the article, Ms. X’s attorneys argued that the Bauer legal team’s argument had no merit and that they were, in essence, attempting an end-run in order to obtain Ms. X’s phone records. Ms. X’s legal team also sought to recover attorney’s fees.

As an aside, if Trevor Bauer truly feels that his reputation has been damaged by Ms. X, or if he believes that Ms. X has said actionable things about his character through defamation, he has the same option that she does to seek redress: he could sue in civil court. He could file a complaint alleging slander (which is spoken), defamation, etc., etc., and avail himself of the same legal protections that Ms. X could.

However, I do not see that situation happening in any way, shape, or form. Why? Because if Trevor Bauer were to open the door to litigation, Ms. X could walk right through that figurative door too. In other words, she could counter-sue for conduct arising out of the same incident (see all the horrible injuries discussed in the previous section) and then put Bauer on the spot through written discovery and a videotaped deposition to make Bauer answer questions under the oath as to what he did.

But, what about the Fifth Amendment?

That is a fair question – again, this hypothetical proceeding would be a civil one, not a criminal one. And Bauer has made a huge deal out of the fact that the Los Angeles County District Attorney has declined to prosecute him, so it would be hypocritical and terrible look if he refused to participate in civil litigation feigning fear of a criminal prosecution that literally is not coming. It’s literally the Bill Cosby scenario.

The following is a hypothetical:

Hypothetical Bill Cosby (HBC): “Oh, I won’t testify in this civil litigation about my alleged credible sexual accusations because I could incriminate myself.”

Hypothetical District Attorney (HDA): “We’re not going after you.”

HBC: “Still not going to do it.”

HDA: “Fine, how about our assurance in writing that we won’t come after you.”

HBC: “Okay.” HBC testifies in a deposition that he used quaaludes on various women in the 1970s.

HDA: “Just kidding. I’m going to charge you criminally now.”

HBC: “That’s not fair!” HBC is convicted.

Hypothetical State Supreme Court: “HBC is right.” HBC is released.

Needless to say, the question of Trevor Bauer trying to access Ms. X’s phone records ended when Los Angeles Superior Court Judge Dianna Gould-Saltman, the same judge who denied Ms. X’s permanent restraining order, ruled on April 4, 2022, that Trevor Bauer could not access these phone records because the Bauer legal team had not filed the proper motion in a timely manner.

“It appears that the materials being sought are not germane to the very limited issue that would be before the court on attorney fees. It may be,” Judge Gould-Saltman said. “And the court passes no judgement on whether that information would be available were there a collateral action filed”

In any event, the Judge denied both sides’ requests for attorney’s fees.

The reluctant birth of another series: Law Talk.

When I was updating this essay, there was always the possibility that Trevor Bauer was about to sue someone else, but for the life of me, I could not figure out who. As they say, life always seems to find a way.

And if you want to see the complaint, you can click on the provided link. I spent about an hour going over the Complaint, line by line. In my opinion, there are some issues demonstrating that either Trevor Bauer is being given terrible advice or his attorneys are deeply unethical hacks that make Lionel Hutz look good. Oh, Trevor Bauer also sued Deadspin, so that Complaint will require analysis too. Not to mention what MLB does, if anything, regarding Trevor Bauer’s seemingly perpetual administrative leave.

I really, truly, desperately wanted this essay to be a one-off. Honestly, I just want to write a travelogue and go on trips and be blamed when the Dodgers go 5-15 against subpar opponents. Okay, maybe not that last point. Along the way, I have pointed out the financial rot that threatens our sport. Oh well. It is time for me to quote one of my favorite characters in fiction and get to work.

Next time, I will analyze the Complaint against The Athletic and share my thoughts. I want to meet and confer with a couple of colleagues who know more than I do in certain areas of law, so I do not make a silly mistake and lose my credibility. If the League makes a final decision as to Bauer in the interim, then that is what I will write about instead.

I would hope that you take the following bit of advice: “do not fear the lawyer who says “I don’t know;” be terrified of the lawyer who proclaims to know everything.” Nine and a half times out of ten, I usually embarrass that type of lawyer. See you next time.