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FILE - In this June 24, 2016, file photo, Derrick Rose speaks during a news conference for the New York Knicks to announce they acquired him from the Chicago Bulls at Madison Square Garden in New York. A Los Angeles federal judge ruled Tuesday, Sept. 20, that a woman accusing NBA star Rose of rape cannot remain anonymous at her upcoming civil trial. (AP Photo/Mary Altaffer, File)

Legal analysis of the Derrick Rose case

AP Photo/Mary Altaffer, File

The Los Angeles Police Department revealed they do have an open criminal investigation into Derrick Rose a week ahead of his civil trial in which he faces gang rape charges. According to Exavier Pope, host of the #SuitUP Podcast and sports legal analyst with appearances on ESPN, CNBC, BBC, Fox News, HLN and elsewhere, that changes everything.

“The fact there’s a criminal investigation greatly impacts the cooperation that could involve Jane Doe and her anonymity. Derrick Rose and his team have been fighting that in court,” Pope told Today’s Fastbreak. “Now we find out that the criminal investigation wants to keep Jane Doe’s identity a secret in order to not hinder their investigation.”

Pope elaborates that this helps the plaintiff in the civil case.

“This really forces Derrick Rose’s team’s hand to potentially settle before an upcoming Oct. 4 trial. A criminal investigation coming is a game-changer for Derrick Rose. Derrick Rose, I think, was willing to take this all the way through a verdict at trial to show that this was a woman using him, that she was some kind of gold-digger, that she was lying about this $200 sex belt, and if she would lie about the sex belt, she would lie about this encounter. But now you have the criminal element.”

Pope revealed that his own perspective of the case had changed since the initial allegations were publicized last year because of the criminal case.

“I’ve reversed field on my own. Initially, I broke down the complaint of the plaintiff, and my biggest challenge to the case was: Look, if this person is bringing a civil case, why do they not bring a criminal case in order to strengthen and bolster their chances of winning?”

Actual proceedings from the civil trial wouldn’t have the same impact on any pending criminal trial as it would in reverse, because according to Pope, “the rules of evidence as well as the standard of proof are different in a civil trial than in a criminal trial.”

That doesn’t mean that they don’t get connected, though. The looming threat of the criminal investigation gives Doe’s team leverage in the civil trial, as Pope explains.

“There was no rape kit. It was just her word against Derrick Rose’s. Lack of physical evidence is very common in sexual assault cases. As a result, the jury has to weigh the testimony of one side versus another. In a criminal case — and a highly publicized case with criminal charges — involving sexual assault, the biggest thing needed is the cooperation of the alleged victim.

“If you have a settlement in a civil trial, right away one of the conditions of settlement is the plaintiff agrees ‘I’m not going to press any criminal charges. We’re done. I agree you haven’t done any wrong doing. You go your way; I go mine.’”

In other words, if Rose reaches an agreement, it likely involves Doe not pressing the criminal matter, and if she doesn’t press the criminal matter, the LAPD doesn’t have much of a case without her cooperation. That’s why the criminal trial gives her so much leverage right now. Before it was just a money issue; now it’s a freedom issue.

Rose hasn’t helped himself in the interim either.

“I really don’t think Derrick Rose’s legal team has been particularly savvy in terms of how they’ve done some slut shaming in the documents they’ve filed, in attempting to get rid of Jane Doe’s anonymity. They’ve discussed Instagram photos.

“It also doesn’t seem Derrick Rose was coached up very well on how to respond to deposition questions.”

Particularly on the last part, Pope emphasized this: “The fact he said ‘we men’ in terms of why he and two other men were going over to a woman’s apartment in order to potentially gain access to Jane Doe’s apartment was some of the most damning testimony that you will ever hear.”

“When you go through what he stated, he sounded like a monster. And he made himself look really bad. I really believe that deposition changed the tide on how Derrick Rose is viewed. And it may be one of the main reasons why there’s a criminal investigation.

“It’s total speculation, but it may be one of the reasons there’s a criminal investigation right now. It was his own words damning him and making it look like he’s admitting to sexual assault, essentially. And that’s something that could be used in a criminal trial. That’s why when we look at this in the criminal context, it’s a game-changer.”

Pope believes that the criminal investigation could force Rose into settling.

“Now that there’s been a criminal investigation announced, Derrick Rose and his team have exactly one week to prevent Jane Doe from getting on the stand and telling the world things that make Derrick Rose look like an absolute animal, in the midst of a criminal investigation facing him.

“Now with a criminal investigation facing him, you have league discipline and a new situation with the New York Knicks. I think that one of the main reasons he was trying to keep this at bay is ‘Hey if I win this trial, based on this he said/she said, I don’t get disciplined from the league.’

“Now with a criminal investigation, even if no charges are filed, Derrick Rose puts himself into a position to be disciplined because an investigation has started. And now you settle a civil case. Now if the NBA does nothing, the NBA looks bad. So, Derrick Rose’s position is getting worse and worse and worse and worse.

“Do I believe that there will be a trial? I am starting to believe possibly there may be a settlement in this case. Possibly. I can’t speculate what’s actually going to happen in a courtroom; that’s the job of Derrick Rose’s defense team, and the prosecutors in the case and the legal system moving forward. But the worse it gets for Rose, the harder it gets for him to say ‘I can beat this and get away with no consequences whatsoever.’

L.A. Lakers' star Kobe Bryant leaves court at the Justice Center Tuesday, Aug. 31, 2004 in Eagle ,Colo. after a day of jury selection in his upcoming sexual assault trial. (AP Photo/M. Spencer Green)

AP Photo/M. Spencer Green

This is a different world than it was in 2003 when Kobe Bryant faced a rape trial, in large part because of the pressure that gets put on leagues through social media. Incidents like Ray Rice, Adrian Peterson and Greg Hardy have changed the way we view such incidents.

“There wasn’t the Twitter justice seekers that were out there. If you did something wrong with a woman, slut shaming was ‘okay’ when Kobe Bryant had his trial. He played during the trial. There’s no way that happens now, with the way that trials are covered.

“All these issues are at the forefront of our consciousness, and we need to know what’s going to happen next. And as a result of this, what happens on a daily basis makes the news. Nobody cared about what happened to Kobe Bryant; people wanted to know if Kobe Bryant would make it to the game.

“The focus on the Kobe Bryant trial was mostly on the initial interaction he had with the detectives and what he had to say about Shaq. And that’s what was important, the Kobe-Shaq beef. It was more a basketball-related issue instead of a sexual assault issue.

“Also, rules of personal conduct, collective bargaining agreements — all of these legal wranglings and intersection with sports; it just wasn’t really talked about as much because they weren’t as impacted as much by the social media pressure. Now, we react in much stronger ways.

“Victims’ rights in terms of sexual assault have increased significantly. We do know that 68 percent of women who encounter sexual assaults don’t report them. So more attention is paid to this issue, and especially with guys who are making millions of dollars, if you’re going to do that and act like a common person who’s committing crimes, you’re going to lose your contracts and your endorsements and maybe your freedom.

“That never would have happened without social media.”

So how is this likely to turn out?

Pope said he believes the best-case scenario for Rose is that the criminal investigation moves quickly and there are no charges before the civil trial begins. That would relieve him of that pressure. The worst-case scenario is obvious: jail.

Pope doesn’t feel either of those scenarios are likely, though. The more likely outcome: “With the pressure of a mounting criminal investigation against Derrick Rose, with a season of Derrick Rose (in New York) that was supposed to be a season of excitement now becoming a distraction, they decide to settle a civil case with Jane Doe that he probably should have settled a long time ago. After reaching a settlement, Derrick Rose will probably face discipline from the National Basketball Association, via suspension, fine or other consequences.”

Legal analysis of the Derrick Rose case

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