Affidavits the Public Shouldn't Be Reading

By Jeralyn, Section Colorado News
Posted on Fri Jul 22, 2011 at 07:46:41 PM EST
Tags: Perrish Cox (all tags)

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Affidavits for arrest warrants are not evidence. Their contents may be correct, but they also may contain inaccuracies. Affidavits contain hearsay, speculation and assumptions. They are not subject to the rules of evidence. They are not tested by cross-examination. Their purpose is merely to convince a judge that probable cause exists to arrest someone for a crime.

Criminal trials take place in public. Criminal investigations should not. One sided affidavits have no place in the public domain unless and until they are admitted as evidence at trial.

Unfortunately, the Colorado Supreme Court today, in refusing to review Denver Bronco Perrish Cox's petition to keep the affidavit in support of his arrest warrant on sexual assault charges sealed, has now poisoned his chance at getting a fair and unbiased jury. [More...]

It was released to the media today. Multiple outlets have published the 13 page document in full. And no, I won't link to it.

The only thing redacted from it are a few sentences and the accuser's name (She's not a victim until the court rules a crime was committed. She's a complaining witness and an alleged victim.) Yet the names of the accuser's girlfriend, who was present the night of the alleged encounter, and two other Broncos who also were present, none of whom allegedly did anything wrong, appear multiple times throughout with details of their statements and actions. They may ultimately be witnesses, but until then, why broadcast their names?

So careless is the media, that headlines are appearing all over blaring things like "Report: Broncos' Cox fathered baby of rape victim" and "Affidavit: Broncos Cox Fathered Baby In Sexual Assault."

What baby? Was a baby ever born? Or was the pregnancy terminated? In the body of the second article, the reporter tersely acknowledges, "It's not clear if the woman had the baby."

The identity of the accuser is all over the internet. But of course the media, while gleefully broadcasting the down and dirty allegations against Cox and private details of the others involved, grant her anonymity.

Charges are accusations, nothing more. An arrest warrant affidavit is one cop, under oath, recapping details of an investigation in the worst light possible for the suspect, in order to get a warrant for arrest.

That Perrish Cox impregnated the accuser doesn't make it rape. Assuming the DNA tests performed at 11 weeks on the fetus in utero are accurate, it means he had sex with her. Assuming the allegations in the affidavit are true that he later denied to the accuser and police he had sex with her, no one knows his motive in making the denials. Everyone assumes they were to cover up his guilt. Assumptions are not evidence. Juries need to keep an open mind. Trials take place in courtrooms, not on laptop screens and living rooms.

The media is out for a buck, not to enlighten the public. It wants to sell more papers, attract more viewers and increase its online traffic. It doesn't care whose privacy and constitutional rights it tramples.

This prurient interest in salacious details from pending court cases, particularly before trial when evidence has not yet been admitted or tested, has gotten out of hand. From Dominique Strauss-Kahn to Perrish Cox, in the media's eyes, all charged offenders are guilty and fair game to be trashed before trial, while accusers are saintly victims, whose very identity must be protected.

Colorado public records laws may presume these records should be public. The state legislature should revisit these laws, in light of how, since they were passed, news organizations post everything online and then allow public comments, in which malicious and salacious gossip is further spread, and Twitter and Facebook broadcast everything. After reading Perrish Cox's affidavit, I can't begin to fathom what the Court was thinking in allowing the media to have this affidavit and spread it like wildflower three months before trial.

It should be noted that in the Cox case, the DA, the defense and the accuser wanted the affidavit to remain under seal. The media persuaded the trial judge, a former long-time prosecutor, to disclose it.

If this young woman elected not to have the baby, does the whole world have to know she was impregnated? Does it have to know she thought one of the other Broncos present that night (who she says she made out with) was probably the one who had sex with her if sex took place? Does it have to know that three weeks later, she had sex with her boyfriend, also a Bronco, and his name? Does it have to know that her girlfriend spent the night in the bathroom throwing up? Or that her girlfriend assumed she (meaning the girlfriend, not the accuser) hadn't been raped because her tampon was still in the place the next morning?

Most cases don't go to trial and are resolved by plea bargain. If Cox ultimately pleads to something to resolve the case, it's doubtful any one these titillating details would be revealed. We're all better off not knowing them.

If Cox does go to trial, the public will learn in due course, along with the jury, the details of what happened, subject to the court's rulings on admissibility of evidence. There's no reason to know now. This isn't a reality TV show where the public needs to have "spoilers."

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Affidavits the Public Shouldn't Be Reading | 9 comments (9 topical)

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It's always been that way (5.00 / 0) (#5)
by Jeralyn on Sat Jul 23, 2011 at 01:31:42 AM EST

Guilt sells in America, as I've been writing here since 2003.

As for Nancy, check out this 2005 San Francisco Chronicle oped, Guilty or not, here she comes -- Nancy Grace brings mob justice to CNN

naive me (none / 0) (#1)
by diogenes on Fri Jul 22, 2011 at 09:42:47 PM EST

"Their purpose is merely to convince a judge that probable cause exists to arrest someone for a crime."

Affidavits are sworn instruments which presumably must be admitted as evidence by a judge if a judge reads them and decides that there is probable cause for an arrest. Isn't a probable cause hearing a legal proceeding?

no, you are thinking of (none / 0) (#2)
by Jeralyn on Fri Jul 22, 2011 at 10:03:05 PM EST

a preliminary hearing. That occurs after the defendant is arrested and charged. It has nothing to do with affidavits. At the probable cause hearing the prosecution puts on witnesses and the judge rules whether or not there is probable cause that a crime was committed and the defendant committed it. If the judge finds probable cause, the case proceeds.

The affidavit for the arrest warrant is for the arrest of the defendant. It is not evidence at later court proceedings (unless the defendant wants to challenge the arrest warrant, but that also occurs later at the pre-trial motions stage.)


wait (none / 0) (#8)
by diogenes on Sat Jul 23, 2011 at 01:11:55 PM EST

Is a sworn affidavit evidence at a probable cause hearing, regardless of whether it is admissible at the criminal trial? And are probable cause hearings public record or secret?
Also, I assume that defense counsel has access to affidavits at the probable cause hearing; is the defense uniformly forbidden from leaking them?


there's no reason to admit the (none / 0) (#9)
by Jeralyn on Sat Jul 23, 2011 at 05:02:53 PM EST

affidavit at the preliminary hearing. It's an evidentiary hearing with live witnesses. Witnesses can be cross-examined. Affidavits cannot.

There is no "hearing" when an arrest warrant is obtained. It's presented to the judge in writing and if reading it, he or she finds probable cause, it's signed. Then they arrest the suspect. Then they bring him to court where he's advised of his rights. A preliminary hearing is set. At the hearing, the proseuction puts on witnesses. The defense cross-examines. The defense can call witnesses if they want. The rules of evidence don't apply. Hearsay is allowed.

The purpose of the hearing is for the court to decide whether there is evidence which could support a conviction. The court does not consider the credibility of the witnesses and it must view the evidence in the light most favorable to the prosecution.

If the court finds probable cause, i.e., reason to believe, a crime was committed by the person charged, the case is "bound over" for trial. The next step (in Colorado) is the arraignment where the defendant enters a plea of not guilty. Then it gets set for motions filing, and for trial.

The affidavit is provided to the defense in discovery, along with police reports and reports of scientific evidence and witness statements.

No one has ruled the statements in the affidavit (or the conclusions the officer made from them) are true. There was no preliminary hearing in this case because the defense waived it.

If convicted of the charged offense, Cox is facing either a minimum of 20 years probation or prison. If the judge imposes prison, the sentence is indeterminate with a maximum of life. The Judge sets the minimum, which is set by statute, but doesn't decide when he gets out. The Colorado Sex Offender Treatment Board does, and not many people have been released.

Please take your guilt suppositions elsewhere. You may not declare him guilty here. He is presumed innocent.


: What guilt suppositions? (none / 0) (#10)
by diogenes on Sun Jul 24, 2011 at 06:11:16 PM EST

Thank you for the info.
If what you are saying is that Colorado either has or should have a law that all such affidavits are bound by a gag order until trial, then you are wonderfully wise.

Yeah, pretty salacious affidavit (none / 0) (#3)
by magster on Sat Jul 23, 2011 at 12:06:17 AM EST

It sure does make Cox look guilty, which is precisely your point as I am a potential juror in Douglas County.

all valid points jeralyn. (none / 0) (#6)
by cpinva on Sat Jul 23, 2011 at 06:27:44 AM EST

that said, anytime public funds/resources are used, it becomes a matter of public record, absent a legitimate national security interest in it remaining secret. so it is with the affidavits submitted to the judge (a public official, paid with tax dollars), and so it will be with every word put to paper, spoken in court or the police station. all involve the use of publicly paid for resources.

it is defense counsel's responsibility (assuming a trial) to ensure, through jury selection, that their client receives a fair trial in front of an unbiased jury and judge. or, in the alternative, should this not be possible, due to the jury pool's exposure to salacious pre-trial news of the alleged crime, to request a change of venue.

being realistic (and we should always be realistic), even if the judge had put the clamps on these documents, sealing them, they would have gotten out, given the individuals involved.

admittedly, this sort of thing makes a defense attorney's job that much harder, but that's why you get paid the big bucks.

While your post wins the argument.... (none / 0) (#7)
by magster on Sat Jul 23, 2011 at 12:34:43 PM EST

as a Bronco fan I like that the team knows this information before the season starts so that they can send Cox packing. I don't need proof beyond a reasonable doubt as a fan to want Cox out of the league, and I am awfully tired of seeing sports "heroes" treat women so horribly (Kobe, Ben Roth...'er, Brandon Marshall, Lawrence Taylor, Nate Webster, etc., etc.).