An Open Letter to the DA in the Ben Roethlisberger Case

Hon. Fred D. Bright, District Attorney, Ocmulgee Judicial District, State of GeorgiaDear Mr. Bright:Ben Roethlisberger raped a 20 year-old college student in your jurisdiction.He committed a violent felony which you and you alone were responsible for pursuing.  You are the elected District Attorney who was called upon to summon the vigilance, resources, legal theory, competence and simple courage to bring this man to justice.  Justice, as you correctly stated, is your proper goal rather than a conviction.  Instead of pursuing justice, however, you ran from it.  In both substance and delivery, your decision not to pursue charges against this rapist is one of the clearest examples of prosecutorial incompetence I’ve witnessed in years.Normally I would withhold judgment on a charging decision in a case I wasn’t directly involved in.  I’m aware that your rape statute is challenging.  I’m not familiar with your jury pool, your legal culture or the limits of your resources.  So while the decision looked timid and feckless to me, I was willing to extend the benefit of the doubt.And then I heard you speak.The news conference, where you laid out your reasons for not pursuing this case, to the extent that it accurately reflected your analysis, should stand as a training tool in how not to evaluate a sexual assault case.  You note “quite candidly” that it was the victim’s friends who initially sought out a police officer to make a report.  What’s your point?  That she was clearly not victimized because she didn’t have the wherewithal to seek out a cop herself, just seconds after being raped by a professional football player twice her size?You note the victim’s statements changed over the night in question.  Are you really surprised, given that she was intoxicated, confused, frightened and in shock over the period of time in which they were taken?  What about the now resigned police sergeant who berated her for being drunk, spewed expletives about her and informed her and her friends that Roethlisberger had a lot of money, and that filing a police report against him would be futile?  Did you think that would promote cooperation and stability with your victim?  You note also the victim’s statement to medical professionals that night that she was “sort of raped” by a boy.   Therefore, in your mind apparently, she really wasn’t.  Because I guess it’s one shot, one kill in your jurisdiction.  If a woman, because of shock, fear, mistreatment, intoxication, confusion, the weight of circumstances, the attacker's celebrity and the psychological punch of being raped, can’t recite facts flawlessly within hours of the attack, she’s done for.  The case can’t be proven.I can’t say for certain whether you could have proven this case beyond a reasonable doubt and you can’t either.  I can say for certain that the standard you invoked for whether charges should be brought is utterly false, in addition to being misleading and needlessly defeatist.  The National District Attorneys Association, an organization I served for two years, promulgates Prosecution Standards which state that the prosecutor should file “only those charges which he reasonably believes can be substantiated by admissible evidence at trial.”  You had plenty.  You had motive, opportunity and zero delay in reporting the incident.  You had eye- witness testimony from her sorority sisters, panicking at the thought of their friend’s condition and circumstances, and being coldly stonewalled by “bodyguards” and the bar management.  You had physical findings consistent with sexual penetration.  You had the gift of a rare evidentiary rule that would have allowed you to use Roethlisberger’s 2008 sexual attack as part of your case in chief had you developed it.  You might have had the victim’s testimony had you chosen to establish a rapport with her from the beginning without judging her from a distance.  In order to develop a rapport and promote cooperation, a competent prosecutor will reach out to the victim of a sexual assault immediately.  Did you even speak to her before she was ensconced in legal protection of her own before April 2, nearly a month after the rape?Your responsibility includes a college town, Mr. Bright.  If this is how you react to the extremely common scenario of alcohol facilitated sexual assault, then I fear greatly for the people you’re sworn to protect.   I understand the victim’s eventual desire that the case be dropped, and I respect the fact that you took her wishes into consideration.  Regardless, my guess is that treating her and this case with more respect from the very beginning might have yielded a different outcome with regard to her willingness to cooperate.  Instead you pointed to her failings as a 20 year-old college student and perversely equated her behavior with Roethlisberger’s that night in some inappropriate scolding session you had no reason or authority to engage in.I don’t believe you dropped this case in any sort of deference to a celebrity. I think you ran from it because you’re thoroughly unschooled on how to prosecute anything like it. Thus, you have failed this woman, the citizens of your jurisdiction, and the wider world beyond it.  You have allowed a repeat sex offender to escape, let loose to rape again, which he almost surely will, despite your admonitions to him to “grow up.”  Ben Roethlisberger is grown up, Mr. Bright.  He’s a grown up rapist, and he has permanently altered and forever scarred the life of more than one woman.  If he does so again and his next victim chooses to report him, I pray that her courage is this time equaled by that of the DA responsible for doing justice.Very Truly Yours,Roger A. Canaff, JD