LOS ANGELES - Lawyers for a woman accusing NBA star Derrick Rose and two of his friends of rape failed to disclose text messages to the defence, but the lapse was not significant enough to throw out the case or declare a mistrial, a judge ruled Wednesday.
Lawyers for Rose had argued that the plaintiff's lawyers purposely withheld three texts until the woman was done testifying so the defence couldn't question her about messages that showed the night in question had been planned for sex and that she was talking the next day about being reimbursed for cab fare and not accusing anyone of rape.
U.S. District Court Judge Michael W. Fitzgerald said the accuser's legal team had failed its legal obligation to share the texts, but there was a "minimal amount of prejudice" against Rose and his friends. He said he would instruct jurors that the texts were disclosed recently and allow defence lawyers to question the accuser about the messages.
"I'm not going to dismiss it now," Fitzgerald said. "I'm not going to declare a mistrial when we have a jury in the box."
The woman's lawyers said the texts were shared with the defence, but they couldn't prove it. They also argued the defence had other messages showing the same thing.
The decision came the day after Rose testified that he had a hunch the woman was going to claim the men raped her when he received a suspicious text later the same day.
The texts described burns the woman claimed she got on her hands from a fire pit outside his Beverly Hills house and said she had been "wasted" the night before. Rose said he never witnessed any burns the night before and that she seemed sober.
"It looked like a setup," Rose said. "It turned out to be what I thought."
The 30-year-old woman filed the $21.5 million lawsuit two years after the August 2013 incident, claiming Rose and his friends raped her at her apartment while she was incapacitated from drinking and, possibly, drugs.
The Associated Press is not naming the woman because it generally does not identify people who say they are victims of sexual assault.
Rose testified that he was raised by a single mother, who was his mentor and had taught him to respect women.
When attorney Waukeen McCoy began to ask Rose a question by saying that since his mother had taught him manners, Rose snapped back in a rare display of emotion during an otherwise unflappable matter-of-fact testimony.
"Was that a joke?" he said. "Don't be playing on my mom like that, bro."
The central issue in the trial is consent and a lawyer for the woman spent much of his time trying to show that she never agreed to have sex with Rose in the early morning hours of Aug. 27, 2013, not to mention his two friends.
Attorneys for the woman showed video taken of Rose in June testifying at his deposition in which he said he didn't understand the word consent.
When asked by his own lawyer, he said he was nervous at the deposition and he defined consent as both parties being in agreement. He said the woman had consented all the previous times they had sex over an 18-20 month period.
Although they had split up a couple months before, he said he assumed consent based on their past and a text message she sent out of the blue that morning saying he made her "horny."
"No is no. I'm never going to force myself upon anyone," Rose said. "When she sent me texts like that 99 per cent of the time it ended up in sex, so what do you expect?"
Randall Hampton, Rose's personal assistant and co-defendant, was called to the stand by the woman's lawyer to show inconsistencies and contradictions in their testimony.
Hampton said his boss has a poor memory and provided a conflicting account about the evening at Rose's house.
Hampton said the woman had sex with him and Rose at the Beverly Hills house hours before they went over to her apartment. Rose testified that the woman initiated trying to have oral sex with him while she was having sex with Hampton.
Hampton, however, said Rose initiated that act and then later had sex with the woman on a bed at a poolside cabana.
"He has a hard time remembering things," Hampton said of Rose, who he said is like a brother to him.
When asked if he was concerned about having sex with Rose's ex-girlfriend, Hampton said he never saw her as a girlfriend of Rose's even though he booked trips for her to visit the point guard in Chicago and Philadelphia.
"To have sex," Hampton said, "that's what I was booking the flights for."