By Charlie Deitch
PITTSBURGH — Allegheny County prosecutors say a county Common Pleas Court judge erred last July when he threw out a jury verdict convicting a former Carnegie Mellon student of sexually assaulting a female Pitt student.
In May 2019, a jury convicted 24-year-old Joon Woo “Jason” Baik of sexual assault stemming from a 2018 incident in which the victim was found “hysterical,” intoxicated and nude outside of Baik’s apartment.
But when Baik returned for sentencing two months later, Judge Alex Bicket tossed the jury’s verdict and acquitted the man citing “unreliable and contradictory” evidence that did not support a conviction.
Prosecutors disagreed. In January they filed motion with the state Superior Court to appeal the judge’s decision to insert his own judgement for the jury’s. A response to that filing is expected Thursday.
The crux of the prosecution’s case was that the victim was too drunk to consent to sex. A key piece of evidence in this case was an audio recording made by Baik on his cellphone during his entire interaction with the victim, “just in case something like this happens,” he told police at the time. He also told officers the victim was “very drunk.”
Baik’s attorneys, when asking for the judge to toss out the verdict wrote that “it wasn’t like the commonwealth established with sufficient evidence that she, in fact, had so much alcohol she was incapable of consent,” the Pittsburgh Post-Gazette reported at the time.
The tape of the encounter proved to be important evidence for both sides, Baik’s team says it proved consent, while prosecutors contend it proved the victim explicitly did not give consent.
In granting the acquittal Bicket wrote:
“The Commonwealth alleges the evidence was sufficient to convict Appellee of Sexual Assault. This Court disagrees. This Court believes that the Commonwealth failed to satisfy its burden beyond a reasonable doubt that Complainant did not consent to sexual intercourse with Appellee. More specifically, this Court found that the Commonwealth failed to establish that Complainant was unable to give valid legal consent due to intoxication.
“… In a case where both parties are admittedly drinking and ‘showing signs of intoxication,’ this Court notes the difficulty in assessing each party’s mental state and capacity to consent and the mens rea requirement of knowing or recklessly disregarding the level of intoxication of the other party in their ability to consent to the sexual encounter. That is to say, where both parties are intoxicated to a point possibly making each incapable of consenting to sexual relations, it is difficult to say how either consented, or not.”
In his appeal brief, Deputy District Attorney Michael Streily wrote:
“With all respect to the trial court, it erred in the present case by failing to acknowledge the legitimate inferences the jury was permitted to make, ignoring circumstantial evidence, and making improper findings of credibility as a result of its disagreement with how the jury interpreted the testimony and physical evidence. Further, the evidence clearly established that appellee was nowhere near the victim’s extreme level of intoxication. And importantly, the affirmative defense of intoxication and/or diminished capacity was not available to appellee and was not put forward by appellee.”
In overturning the verdict, Bicket, according to the brief, highlighted some comments made by the victim on the tape at one time telling him to “f**k” her.
However, Streily contends that there are even more moments where the victim specifically told Baik to stop:
“The Commonwealth does not shy away from its explicit nature. But in regard to the recorded conversation, what the trial court ignored was how it began. While on the couch, during the course of drinking, and before any sex occurred, the complainant told appellee that she was ‘exhausted.’ When appellee asked if she wanted to come to his bed. She said no.”
Despite declining the offer to go to his bed, Baik carried the woman to his bed. According to the brief, the two can be heard on the tape “engaged in some type of sexual conduct.” However, the woman began to cry and said, “Don’t do this.” and “stop doing that.”
Also by deciding to record the encounter, Streily writes that Baik “knew she was drunk and he knew that in situations where one partner was intoxicated, it might be necessary to prove consent. His actions show that he knew he was in a precarious situation:
“There is also no support for the trial court’s bald assertion that the evidence does not support an inference that appellee continued his sexual advances once told to stop. At 18:30 to 19:07 of the recording, this Court will hear complainant say ‘don’t do this’ and ‘I don’t want to f**k.’ The recording continues and it is really beyond any serious dispute that the sounds recorded were noises being made by complainant and appellee while engaging in sexual relations of some type.. It was up to the jury to determine the point in time in which complainant informed appellee as to her lack of consent. … complainant effectively conveyed her lack of consent very early in this encounter.”
Charlie Deitch is the editor of the Pittsburgh Current, where this story first appeared.