Judge is considering request for mistrial in civil case accusing NBA star Derrick Rose of rape

A federal judge on Tuesday said he was considering declaring a mistrial in the civil lawsuit accusing NBA star Derrick Rose and two friends of raping the basketball player’s former girlfriend in 2013.

Rose’s attorney asked for the mistrial on Friday, at the end of several days of testimony, alleging lawyers for the plaintiff had withheld from the defense text messages the woman allegedly sent to Rose that bolstered the men’s account of what occurred.

U.S. District Judge Michael W. Fitzgerald put off the request until Tuesday morning, when he allowed the two sides to make their case before testimony resumed in the downtown Los Angeles courtroom.

Mark Baute, Rose’s attorney, unleashed a barrage of criticism on Waukeen McCoy, the woman’s lawyer, saying McCoy had ignored repeated requests to provide copies of the evidence he planned to present during trial. Baute claimed he found the previously unseen texts on Friday in documents McCoy belatedly shared.

McCoy denied the charge, saying he believed the text messages had been handed over along with a cache of other texts and phone records from the run-up and aftermath to the alleged rape in the early morning hours on Aug. 27, 2013.

The answer left Fitzgerald visibly frustrated as the judge pressed McCoy for details on when the texts had been passed along. When McCoy failed to give him a definitive answer, Fitzgerald ordered the attorney to come up with time-stamped documents showing that the texts in question were included in the batches of messages given to the defense.

If, in fact, the defense was not given the texts, it would represent a significant gaffe by the woman’s legal team, since Baute and the attorney for Rose’s friends would have been denied the chance to question the woman about the messages under oath.

“This is a serious issue,” Fitzgerald said.

Fitzgerald told the plaintiff’s lawyers to come up with proof by Wednesday morning that the texts had been shared with the defense. But Fitzgerald said if the attorney is unable to make it clear that he did so, he would consider declaring a mistrial.

Text messages have proved to be crucial evidence in the case. Each side has tried to use the exchanges selectively as proof of its own account.

McCoy has said they show the woman was unaware the men were coming over to her apartment and had no intent to have sex with them; Baute and Michael Monico, the attorney for the other two men, have said the texts demonstrate that the woman was alert in the hours before the alleged assault and invited the men to her apartment for sex.

Baute said in court Tuesday that the three texts he contends were withheld show the woman willingly went along with a request from Rose that she and a friend come to his house for sex. In one of the messages, sent after the two women had left Rose’s house, the plaintiff reproached Rose for refusing to have sex with her friend after she went to the trouble of arranging the rendezvous.

The exchanges were a small sampling of a lurid trial in which the two sides have fought bitterly to convince jurors of competing accounts of what occurred on the night in question.

The woman alleges that Rose, a player for the New York Knicks, and his two friends drugged her while she was drunk at Rose’s house and later sneaked into her apartment to assault her while she was incapacitated. The plaintiff has asked to be awarded $21 million.

The Times generally does not name people who allege they are victims of sexual assault.

The 30-year-old woman testified in the trial that she believes the men slipped an unnamed drug into one of her drinks and that she has only “flashes” of memory of what occurred at Rose’s house and later in her apartment. She told jurors that she passed out in her bed and awoke to find the men in her room assaulting her.

Rose, 28, who finished several hours of testimony Tuesday, denied the woman’s allegations, portraying her as the aggressor throughout the night. He said the woman agreed to have the three men come to her apartment, let them in and willingly had sex with each of them in turn. The other two defendants, Randall Hampton and Ryan Allen, childhood friends of Rose’s whom he now employs, were expected to testify later.

The men have not been charged criminally in the case and deny the allegations. Los Angeles police officials have said they are continuing to investigate the incident, which the woman reported in 2015.

At one point Tuesday, McCoy zeroed in on Rose’s decision to take his condom with him when he left the woman’s apartment, accusing him of trying to clean up any trace that he had been there.

Rose denied the allegation, saying players in the NBA are coached not to leave behind condoms in order to guard against women surreptitiously impregnating themselves.

Later, when Baute was questioning Rose, he suggested to jurors that text messages the woman sent early in the evening were part of a scheme she concocted in advance to accuse the athlete of rape.

“At the time, did you suspect you were being set up?” Baute asked Rose.

Rose said he did not suspect anything at the time but grew suspicious the following day when the woman texted again and commented on how drunk she had been.

joel.rubin@latimes.com

For more news on federal courts in Southern California, follow me on Twitter: @joelrubin

Times staff writer Jack Leonard contributed to this report.

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UPDATES:

6:35 p.m.: This article was updated to say the judge gave the plaintiff’s lawyers until Wednesday morning to show proof that the messages were handed over the defense, according to the Associated Press.

3:25 p.m.: This article was updated with details from Tuesday’s court hearing.

This article was originally published at 10:40 a.m.