Judge blocks some wit­ness testimony in grop­ing trial

For­mer Den­ver ra­dio host says singer cost him job, ru­ined his life

The Denver Post - - NEWS - By Danika Wor­thing­ton John Leyba, Den­ver Post file

For­mer ra­dio host David Mueller, who is su­ing mu­sic star Tay­lor Swift, will likely not have to de­fend his mas­culin­ity in court next month.

U.S. District Judge Wil­liam Martinez par­tially blocked the testimony of Swift’s ex­pert wit­ness, Uni­ver­sity of Colorado Boul­der gen­der stud­ies pro­fes­sor Lor­raine Ba­yard De Volo, whose writ­ten re­port showed that she in­tended to tes­tify that Mueller fit the pro­file of a man likely to sex­u­ally as­sault a woman be­cause of per­ceived threats to his mas­culin­ity.

“Whether the jury finds, based on the testimony and other ev­i­dence, that (Mueller) did im­prop­erly touch Ms. Swift, or finds that he did not, the ques­tions of what mo­ti­vated him to do so, in­clud­ing any per­ceived threats to his pur­ported status as a pow­er­ful male, will be be­side the point,” Martínez wrote in a mo­tion grant­ing the ex­clu­sion.

Mueller is su­ing Swift, claim­ing that he lost his job and is banned from Swift con­certs on false claims that he — then a 98.5KYGO host known as “Jack­son” — reached un­der Swift’s skirt and groped her dur­ing a meet-and-greet be­fore the singer’s Pepsi Cen­ter con­cert in 2013. Swift is coun­ter­su­ing Mueller on claims of as­sault and bat­tery.

In a writ­ten re­port for the court, Ba­yard de Volo wrote that Mueller had ac­cu­mu­lat­ing threats to his status: First, per­ceived ten­sion with his boss, threat­en­ing his job status. Sec­ond, he was sent on a tour with fans in­stead of ra­dio ex­ec­u­tives, threat­en­ing his ra­dio per­son­al­ity status. And third, Swift ap­peared ex­cited to meet his girl­friend while Mueller may have felt in­vis­i­ble, threat­en­ing his mas­culin­ity.

Martinez wrote that Ba­yard de Volo’s testimony has sig­nif­i­cant risks of prej­u­dice and could con­fuse or mis­lead the jury. By pro­vid­ing “pro­file ev­i­dence” in this way is in­her­ently prej­u­di­cial be­cause the jury must ac­cept a po­ten­tially er­ro­neous start­ing point to con­sider the ev­i­dence. Be­sides, the case is about what hap­pened, not why, he wrote.

“Her testimony on this topic would also risk cre­at­ing tan­gen­tial and prej­u­di­cial dis­putes at trial, such as whether (Mueller) did or did not feel ‘threats to his mas­culin­ity,' ” Martinez wrote.

Ba­yard De Volo will still be in court, though, tes­ti­fy­ing that vic­tims of sex­ual ha­rass­ment and as­sault typ­i­cally do not re­port the event im­me­di­ately, which aligns with Swift’s ac­count of the events. Ba­yard De Volo is the chair and as­so­ciate pro­fes­sor of women and gen­der stud­ies. She has a Ph.D. in po­lit­i­cal sci­ence and a grad­u­ate cer­ti­fi­ca­tion in women’s stud­ies. She also has 20 years of teach­ing and re­search ex­pe­ri­ence in the field of gen­der and vi­o­lence.

Ear­lier this week, Martinez sanc­tioned Mueller for de­stroy­ing mul­ti­ple elec­tronic de­vices con­tain­ing key ev­i­dence in the case.

Swift’s and Mueller’s re­spec­tive at­tor­neys were in court for a pre­trial hear­ing Fri­day, fi­nal­iz­ing pro­ce­dural de­tails ahead of the trial set to start Aug. 7.

Judge Martinez asked if set­tle­ment was pos­si­ble. Both at­tor­neys said no.

“Looks like we’re go­ing to have a trial,” Martinez said.

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