Tense deposition in Deshaun Watson lawsuit featured battles over presumption of innocence, coercion vs. consent

·16-min read

(Warning: This story contains allegations of sexual misconduct.)

HOUSTON — As the depositions in the Deshaun Watson case continue to unfold, the trenches being dug by each legal camp are becoming more defined. Few exchanges may have been more revealing than last week’s lengthy questioning of Houston Police Department detective Kamesha Baker, whose 230-page deposition has been obtained by Yahoo Sports.

Baker is one of two officers previously assigned to investigate 10 criminal complaints against the NFL quarterback, who is currently facing 24 civil lawsuits alleging a range of sexual misconduct or sexual assault. Eight of the 10 women who brought criminal complaints against Watson also have pending civil suits against him, making Baker a potentially key witness in that litigation. Her deposition was sought by Houston attorney Tony Buzbee, who is representing the 24 women suing Watson.

Those 10 criminal complaints and the ensuing investigations that followed failed to produce indictments from grand juries in Harris and Brazoria counties. But the internal workings of those probes, along with the notes and opinions of the two investigating officers — Baker and 25-year HPD veteran Emma Rodriguez, who is also expected to sit for a deposition in the coming weeks — could become instrumental points of contention in the civil litigation.

Focused through Baker’s deposition, three of the central courtroom arguments between Buzbee and Watson’s defense attorney, Rusty Hardin, appear to be taking shape: whether Watson was entitled to any presumption of innocence during the course of the HPD investigation; whether the burden of proof should have been placed on Watson to show his innocence; and the concept of coercion versus consent.

As a witness against Watson in civil court, Baker’s thought process on all three could carry significant weight. It's already impacting the court of public opinion, with Buzbee referring on Instagram to Baker testifying under oath that enough evidence existed for prosecutors in two Texas counties to pursue criminal charges against Watson. That opinion was produced during a long span of direct examination from Buzbee, who followed up by asking if Baker had “any doubt” that a crime had occurred involving Watson. “No,” she replied.

That wasn’t the totality of Baker's deposition. She testified to a multitude of different aspects in the Watson case that could come up in a civil trial, including that she wasn’t asked to testify for the Harris County grand jury that heard nine of the complaints against Watson, but she appeared for questioning before the Brazoria County grand jury. Relating to her Brazoria testimony, Baker said in her deposition that the evidence before that grand jury had the strongest potential for a criminal charge. Neither grand jury ended up handing down indictments.

The contours of the legal arguments in Deshaun Watson's civil suits are beginning to take shape, focused through the deposition of a Houston Police Department investigator. (Ken Blaze-USA TODAY Sports)
The contours of the legal arguments in Deshaun Watson's civil suits are beginning to take shape, focused through the deposition of a Houston Police Department investigator. (Ken Blaze/USA TODAY Sports)

Ultimately, Baker made clear in her deposition earlier this month that she believed Watson was guilty of crimes in the 10 complaints HPD investigated. She pointed to similarities between the accounts of the women involved, underscoring a common “towel” thread in their interviews, in which Watson allegedly used a “small towel trick” to attempt to sexualize massages. Baker also lamented that she was not granted an interview with Watson in an attempt to get “his side” of the alleged encounters, while also stating that her work on the Watson complaints wrapped last September, which was roughly two months before civil lawsuit depositions began.

As Buzbee has made clear with his public comments about her testimony, Baker could be a powerful witness in a civil trial. That’s going to set up a fight between the lawyers about her methods and approaches as an investigator. And you could see it in Hardin’s cross examination.

Here are some of the key exchanges likely to be revisited at civil trial.

Presumption of innocence and burden of proof in Deshaun Watson case

While presumption of innocence is considered a fundamental right when someone is charged with a crime in a court of law, it’s not necessarily a guiding principle during police investigations. Baker’s testimony showcased that reality in direct examination from Buzbee and cross examination by Hardin.

The defense took issue with how Baker characterized her immediate approach, as well as her placing the burden of proof on Watson to prove his innocence. In effect, Hardin appears to be digging into how Baker performed her investigations, and as an extension, arrived at her opinion of Watson’s guilt:

Buzbee: You didn’t immediately think, Oh, he’s guilty and I’m going to prove it?

Baker: I — no, I didn’t immediately think he was guilty. I wanted to give Mr. Watson the benefit of the doubt and give Mr. Watson the opportunity to provide his side of what happened. Which I explained to you and Mr. Hardin that that’s what we do. We’re going to get both sides to get to the truth of it.

Later in the cross examination, Hardin returned to Baker’s approach to sexual assault claims. His emphasis was on whether or not Watson was entitled to a presumption of innocence when claims against him were first made to the HPD.

Hardin: And where in your world, Detective Baker, and I mean this very nicely, does judgment of credibility come? Does the woman always get the benefit of the doubt?

Baker: I start by believing all the victims. Absolutely. Stand by that 100 percent. Anyone investigating a sex crime should start by believing the complainant. Provided defense provides something that refutes it, we’re going to believe that complainant.

Hardin: So in your world of investigation, the defendant always has to prove his innocence?

Baker: Yes.

Hardin: Okay. Are you not aware that’s not the way the system is supposed to work? Isn’t it, Detective Baker, supposed to work the other way, that — that even when you’re investigating, it is — are you saying that all it takes is the woman makes an allegation and once she makes the allegation, the defendant has to disprove it?

Baker: Yes. The defendant has to disprove it.

Hardin: So that would mean, would it not, that in each of these situations where the woman made the allegation at the very beginning, then you’re going to believe it until and unless we can succeed and convince you otherwise?

Baker: It’s not about convincing. It’s about is there evidence to corroborate your — your client’s version of what happened. Because as you stated before, in the other world of investigating cases, the defendant is presumed innocent. This is the only crime — that’s the reason why they’re hard to prosecute and charge and do all of this — is that the women never get the benefit of doubt. They’re always presumed to be lying.

Hardin continued to drill down on the burden-of-proof aspect, later focusing on how Baker would act as an investigator to sort out a he said/she said allegation that occurs with no witnesses.

Prior to this exchange with Hardin, Baker had explained that consistencies in alleged encounters with Watson lended credibility to the accusers. Hardin continued to take exception with the accused being the person who must prove innocence.

Hardin: So let’s say the accused person doesn’t provide you any evidence. They just simply say and deny it and say it’s not true. You with me?

Baker: Yes.

Hardin: And your position is if the accused does not provide you evidence to disprove what the woman is saying, then you’re always going to believe the woman?

Baker: I have no other reason not to.

Hardin: Okay. And so when she makes the allegation, you start out believing her?

Baker: Start out believing them.

Hardin: And then it is the burden of the defendant to convince you as an investigator that they’re wrong. Is that right?

Baker: To provide evidence to support that they’re wrong, yes.

Hardin: All right. So now if an encounter happens in private between just two people, what evidence can the accused provide to show a woman saying X happened and he denies it?

Baker: In my cases that I’ve had I have had videos. I have had a suspect turn over a video where the complainant alleged one thing, said it was not consensual. Video showed didn’t look — it looked pretty consensual.

In one final exchange, Hardin returns to Baker’s contention that she asked to speak with Watson to get “his side” but was not able to conduct that interview. At various points in the deposition, Hardin is suggestive that his defense team gave investigators a significant amount of material during the course of the investigation. Baker agreed with that assertion more than once during questioning. However, Baker also raised the issue of not being able to speak to Watson, which she appears to suggest effectively defaulted Watson’s ability to defend himself to the HPD.

Hardin: All right. So if you start out believing the accusation of the woman no matter what and …

Baker: Uh-huh.

Hardin: … it becomes our burden to convince you that somebody did not do something, and then the lawyer’s advice is for the client not to talk to the police and let the police make their mind up based on everything else that’s available, you’re going to automatically decide he did it?

Baker: So I’m glad you put it like that because in reality, in our world that’s exactly how it happens.

Hardin: Bingo.

Baker: We get charges from that point.

Hardin: All right.

Baker: And the defendant would be charged, and of course naturally you would go to court and represent him and present all your evidence to say otherwise.

Hardin: I got you.

Baker: And we would let the jury decide.

Coercion vs. consent when 'power and influence is in the room'

This subject became testy at one point in the deposition, after Hardin took particular exception to one of Baker’s answers as she was under direct examination from Buzbee. The subject of coercion vs. consent was a driving point for both attorneys, making multiple appearances in questioning.

Baker’s assertion was that Watson’s status as a powerful and influential person created a scenario in which women could not consent to sexual activity with him. Hardin took exception to that notion, at one point reacting during Buzbee’s direct examination when Baker stated that a woman effectively had no choice but to engage in a sexual act because of Watson’s powerful and influential stature. (Yahoo Sports has redacted the name of the alleged victim, who has not filed a lawsuit against Watson but filed a criminal complaint against him.)

This portion of the deposition begins as Baker explains identifying elements of coercion during allegedly unwanted sexual encounters between Watson and accusers.

Baker: I felt that we had some instances of coercion.

Buzbee: Help me understand that, at least from what you learned in your investigation.

Baker: When I speak about [redacted] specifically, the young lady advised that the defendant, you know, told her that he was going to help her black business. So her objective was to, I’m assuming, have a successful business and she felt that having a client of his caliber would help her business. So understanding that, someone — their livelihood potentially being ruined, I could understand how one would feel they had no choice but to participate in the sexual act.

Buzbee: Does the idea of …

Cornelia Brandfield-Harvey (Buzbee's co-counsel, speaking directly to Hardin): Something funny?

Buzbee (speaking to Hardin): You need to take a break? You need to take a break.

Hardin: No, I don’t need to take a break

Buzbee: I just didn’t know why you’d be laughing when she’s talking about.

Hardin: Because it’s an absurd answer.

Brandfield-Harvey: What the ...

Buzbee: Okay. I appreciate …

Hardin: Just keep asking your questions.

Buzbee: Okay. Well, just don’t laugh at a detective. It’s not cool.

Hardin: Don’t instruct me. Just ask your questions.

Buzbee: Okay. We’re going to take a break if he laughs again.

Buzbee (returning to questioning Baker): Okay. Let me — let me continue, ma’am. This idea of coercion, does it also — do you also take into account a difference in physical stature?

Baker: We do.

Buzbee: A difference in perceived power?

Baker: We do.

Buzbee: A difference in economic power? In other words, one person’s incredibly rich and the other person is living hand to mouth?

Baker: We do.

Buzbee hits the point of coercion multiple times during his direct examination of Baker, a suggestion that he intends to argue Watson’s stature — whether physically, financially or influentially — creates pressure scenarios during massage encounters with women.

At one point, Baker states that consent is effectively overridden by Watson’s power and celebrity, due to the influence that it could wield upon the women who are giving massages. As Baker put it, “[W]hen power and influence is in the room, consent cannot be.”

That is a key statement Hardin would drill down on later. But first, Buzbee made multiple passes over the power and celebrity “coercion” aspect with Baker. Here are two of them in the deposition that dealt with one alleged victim performing oral sex on Watson without him directly asking for it.

Buzbee: He convinced her at some point to — now, she made it clear, he did not tell [her] to give him oral?

Baker: Yes, sir.

Buzbee: Okay. So what did you make of that as an investigating officer?

Baker: So as I mentioned earlier, in instances such as that one, power, influence present, her business, fear of losing clientele, fear of negative, I guess, responses about her — her business. As you stated, she did say I — he did not, he didn’t — he didn’t even ask. She just knew what he wanted her to do. …

Buzbee: And so what I’m trying to figure out, what is the coercion there? I’m trying to figure that out because you clearly believe there was coercion. Help me understand that.

Baker: The complainant stated that the suspect stated multiple times to her that he wanted to support her small business.

Buzbee: Okay. Okay. So it was a financial component to that or a difference in economic power?

Baker: The power and the influence is the coercion.

Buzbee: Okay. Complainant stated the suspect is intimidating and big?

Baker: She did say that.

Buzbee: Okay. Is that also part of coercion?

Baker: That could be part of the fear of threat.

Hardin responded to this assertion by Baker a handful of times in cross examination, pointing out his belief that there was no “witnessed” record of Watson making physical threats or threats of influence against the alleged victims. He also appeared to take issue with whether Watson’s celebrity status or influence automatically nullified the agency of women to make a decision about consent.

Hardin: So my question is, it’s your position that any time the man is of — I mean, do you happen to know how much Deshaun Watson weighs or anything?

Baker: I don’t know exact number but I would imagine he is probably over 200 pounds.

Hardin: Right. Let’s say he is 220.

Baker: Six something. Six-feet something, probably 200 something.

Hardin: Let’s say 6-2 or something?

Baker: Okay.

Hardin: Is that fact alone, in your mind, something that makes consent not possible?

Baker: Him being bigger than the …

Hardin: Yeah.

Baker: Him being bigger than the — I sure think that could be an intimidating factor.

Hardin: Well, here is what your sentence was: power and influence in the room. If there’s power and influence in the room there cannot be consent?

Baker: Correct. Stand by that

Hardin: So does that mean that any man that is bigger than a woman and has a public reputation, there can never be consensual sexual activity with a man?

Baker: No. I never said that there could never be.

Hardin: Well, I know, but you did say if power and influence are in the room, there cannot be consent?

Baker: I agree.

Hardin: All right. Do you have any evidence that Mr. Watson ever used his size or his influence?

Baker: Okay. So you’re strictly talking about size as it relates to power and that’s not what I was referencing. I [meant] power in the sense of his fame, his status, his wealth, his resources. That’s power.

Hardin: Okay.

Baker: Also …

Hardin: That’s fine.

Baker: So we can say …

Hardin: I agree.

Baker: No, no, no. And I agree with what you’re trying to say, but in conjunction with that, no, there cannot be consent in the room when all of those factors are involved.

Hardin: Wow. Then really, a person that you are suggesting should never take a chance on getting a massage, because if anybody wants to accuse him of something, he has no recourse. Right? If the woman accuses him of anything and he has those attributes, he has no defense because you’re going to believe the woman?

Baker: (Witness nods.)

Hardin: And then you’re going to say there can’t be consent because of — because of his status in the community. Or — right?

Baker: Yes.

Baker's deposition a snapshot of what civil trial could look like

These exchanges are ultimately a snippet of Baker’s wide-ranging 230-page deposition. They add important context to what a civil trial could ultimately look like.

While Buzbee has been very forward in his civil lawsuit filings about how he intends to construct his legal arguments, Hardin’s defense has not been as transparent to this point. Baker’s deposition provided one of the first glimpses of how he will grapple with potential witnesses Buzbee calls. That’s going to be important when it comes to sorting out lawsuits that lack third-party witnesses to allegations.

It appears Buzbee is going to attempt to construct his courtroom arguments by leaning on the commonality between the allegations and the alleged victims. In that sense, Baker could be very helpful to Buzbee in alleging a pattern of behavior as viewed by the Houston Police Department.

Conversely, it’s clear from Baker’s deposition that part of Hardin’s defense will be to question the approach and mindset of the investigator — whether believing the alleged victim at the onset and requiring Watson to prove his innocence undercut a fair investigation.

Ultimately, these civil cases will rely on credibility to lead one side or the other to a legal win. And it’s clear that credibility is going to stretch far beyond Watson and the women who have brought litigation against him.

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