The trials of Jane Doe 

As Missoula tries to change the way it handles sexual assault, one victim finds the process "keeps getting worse and worse"

It's been 15 months since Jane Doe told police that Timothy Eugene Schwartz raped her in her dorm room at the University of Montana. Since then, she's seen three trials and two different Missoula county attorneys. She's grown apart from her best friends. She's dropped out of college and moved home to California. But she keeps coming back to Missoula because she has to.

"It keeps getting worse and worse," she said back in February, a few days before the second trial. "It keeps getting dragged out. But I wanted him to go to jail, and I couldn't live with myself if I just let him get what he wanted out of it."

She sticks her chin out when she says that—a tic that she repeats when she says she can't stand the smell of wine anymore, or when she says she wanted to hit current Missoula County Attorney Kirsten Pabst. It is the gesture of a young woman who has decided to be tough before testifying as the principal witness in a rape trial, again.

"If it's another hung jury, I don't know what I'll do," she said. "I don't know if I can do it a third time. It already ruined my last year. I was hoping to be done with it this year."

Three days later, on Feb. 24, the second attempt to decide State v. Timothy Eugene Schwartz ended in a mistrial. The Missoula County Clerk of Court accidentally called one of the same prospective jurors called from the first trial, and that juror mentioned it in open court, invalidating the whole pool. Although calling the same juror twice is unlikely, the county had no system in place to prevent it. Jane Doe was going back to California, where she would wait three months before returning to Missoula a third time.

Or she could just drop the whole thing. According to lead prosecutor Jen Clark, Schwartz's attorneys proposed the same deal before each trial: he would plead guilty to criminal endangerment, serve no jail time and not register as a sex offender. Most prosecutors agree that's better than what Jane Doe would likely get from a jury. At pretty much every step of this process, Missoula County gave her a good reason to quit.

"Why is this not going anywhere?" she asked in February, before the second mistrial. "Why can't it be a guilty?"

The answer to that question depends on whom you ask. Last Tuesday, Missoula County convened another 12 jurors to decide State v. Timothy Eugene Schwartz, and they couldn't come up with a verdict either—not at first, anyway. At 4:30 p.m. on Friday, they informed Judge John Larson that they could not reach a decision. After another hour of deliberation, they sent a second note that added the word "hopelessly" to "deadlocked."

The prosecution braced itself for another hung jury. But after the judge sent the jurors back to deliberation with new instructions, they reached a consensus. At 7:05, they filed back into the courtroom with a verdict of not guilty.

Jane Doe came to Missoula for her freshman year of college. After three trials that lasted more than 15 months, she is going home the alleged victim in a rape acquittal. Something is wrong with how Missoula has treated her. But what?

The question of how Missoula treats women who file rape complaints has been amply documented, both in an investigation by the U.S. Department of Justice and in a recently published book by John Krakauer titled Missoula. In the latter, Krakauer convincingly argues that a combination of widespread misunderstanding and individual stubbornness caused police, prosecutors and the University of Montana to mishandle a series of sexual assaults between 2010 and 2012.

Despite the title of his book, Krakauer makes it clear the rate of reported rapes in Missoula is no higher than in other college towns of comparable size. He considers the experiences of the victims whose cases he wrote about typical. But he aggressively criticizes newly elected Missoula County Attorney Kirsten Pabst, both for her work as a prosecutor under former County Attorney Fred Van Valkenburg and in her role as a defense attorney for Jordan Johnson, the UM quarterback acquitted of rape in 2013. When she took office at the beginning of this year, Pabst inherited a scandal and the scrutiny that comes with it.

click to enlarge i23cover.jpg

She also inherited 38 pending sexual assault cases, including State v. Timothy Eugene Schwartz. First tried under Van Valkenburg and then retried under Pabst, it seems like a literal test case of how the Missoula County Attorney's Office has improved its approach to victims of sexual assault.

"If you can't look at yourself in the mirror and say, 'I want to do a better job,' then I think you need to get out of public service," Pabst says in an interview with the Indy. "I can't tell you that we're all the way there yet. I can tell you that we're very committed to being better sexual assault prosecutors."

Three years after the events described in Krakauer's book, it's difficult to say how much Missoula has improved its treatment of rape victims. Everyone interviewed for this story wants to help Jane Doe, yet somehow she's had to deal with a series of legal flukes, bad coincidences, scheduling setbacks, staffing changes and, ultimately, frustration. She is the one who keeps having to take a deep breath, stick out her chin and come to terms with another disappointment.

"The justice system sucks," she says.

Here is one difference between rape and other violent crimes: your typical violent crime is a whodunnit. Everyone agrees what happened—someone broke into a house or someone beat somebody up—and the state has to prove who did it. In a rape case, however, everyone agrees who was involved, and the state has to prove what happened.

In Montana, that means proving two people's state of mind. In order to establish that a defendant is guilty of sexual intercourse without consent—the statutory term for rape—the prosecution must prove not only that the victim did not consent to sex, but also that the defendant knew the sex was nonconsensual.

Timothy Schwartz and Jane Doe mostly agree what happened on the night of Feb. 16, 2014. Jane Doe was drinking in her dorm room with her roommate and friends from their floor. Around 11 p.m., Schwartz arrived with his friend. A few hours and an unsuccessful beer run later, her roommate went to sleep and the other guests went home. Schwartz lay down on the floor and Jane Doe went to bed fully clothed.

Here accounts diverge. According to Jane Doe's testimony, Schwartz turned off the lights, climbed into her bed and began grinding his body against hers. When she told him to stop, he said, "You know you want it." "No, I don't," she said. Then Schwartz flipped her onto her back, pulled off her clothes and forced his penis into her vagina.

According to Schwartz, Jane Doe invited him into her bed. They kissed for a few minutes before he asked her, "Do you want to have sex?" She said yes. After they both orgasmed, he went to sleep. In the morning, he stayed in the room for about two hours. He says Jane Doe invited him to come back later that day to help her with a paper she was writing about rape.

These two narratives are mostly the same, except for the part where Jane Doe explicitly tells Schwartz she wants to have sex with him. She says she told him no. Even if the jury believes her, the prosecution must prove that Schwartz heard her, that he understood what she meant and that he knew he did not have consent.

"That's a thing in our statute that needs some work," Clark says. "The most common out jurors take on these is 'He didn't have consent, but he didn't know.'"

According to Ben Fowlkes, who served on the jury in the first trial and wrote about his experience for the Independent, nine other jurors decided Schwartz didn't know he was raping Jane Doe because she didn't scream. They wanted physical evidence beyond the bites on her lip and bruise on her neck. They questioned why she went to Curry Health Center the next afternoon instead of first thing in the morning.

Even though they believed her testimony and found Schwartz's account incredible, they could not agree on a verdict.

Although the hung jury disappointed Clark, it did not surprise her. Like the other prosecutors interviewed for this story, she considered it a kind of victory.

"We were all pretty excited with the hung jury on it, because rape cases are generally really tough," she says.

Clark describes another case she prosecuted, in which the defendant confessed to putting on the victim's boyfriend's deodorant, sneaking into her bedroom and penetrating her while she was asleep. When she woke up and told him stop, he apologized and left. The jury found him not guilty.

"We questioned the jurors after that," Clark says, "and a woman said, 'We don't think he had consent, but we don't think he knew that he didn't have consent.' She was sleeping. How could he not know?"

Jury selection for the third trial of State v. Timothy Eugene Schwartz began at 9 a.m. on Tuesday, May 26. All 28 of the men and women summoned had heard of Krakauer's book. Only one had read it. Asked if they had an opinion about it, all 28 prospective jurors raised their hands.

"In Missoula, we haven't had a rape prosecuted in a long time," one woman said. "But now it's like a witch hunt."

The prospective juror who had read Missoula said maybe legitimate rape cases didn't get prosecuted because the person deciding has an agenda. Another member of the jury pool announced that the whole issue had been blown out of proportion. Asked why a woman who was raped might not fight back, a third opined that "nowadays, people lack courage, innocence and purity." She added with pride that she does not own a television or read the newspaper.

All these people were blackballed immediately. The defense and prosecution needed to agree on 12 jurors and one alternate from among those who remained.

Lead prosecutor Clark asked a series of questions about how we know someone isn't interested in sex. Defense attorney Brian Smith asked about reasonable doubt and whether the prospective jurors thought rape should be a hard crime to prosecute, as well as how they would feel if the accused in such a case didn't testify.

According to Missoula attorney Jenn Ewan, this process of questioning prospective jurors is one of the most important elements of a rape case. As a special prosecutor appointed by former County Attorney Van Valkenburg, Ewan worked the first trial of State v. Timothy Eugene Schwartz pro bono.

Ewan was in charge of jury selection, and she ran through her vetoes quickly. In the end, her choices for the 12th juror came down to a woman in Griz gear—something Clark and Ewan both consider a red flag after the high-profile trials of Johnson and former Grizzly Beau Donaldson—and a man who insisted that 95 percent of rape reports are false.

"Trying to pick a jury is the toughest part," Ewan says. "I don't think it's a tough case, because it's like every other case that you see for the remainder of time. You will see the guy jumping out of the bushes once every 10 years. But acquaintance rapes are different."

Ewan describes herself as passionate about the issue of sexual assault. She sits on the external review panel established by the Department of Justice to evaluate how well Missoula police and the university have complied with new guidelines for handing rape cases. The panel does not evaluate the Missoula County Attorney's Office, because Van Valkenburg refused to cooperate with the DOJ's investigation.

"It's a two-legged stool," Ewan says. "We see how well UM and the Missoula PD are improving, but we don't see what happens at the county level."

Besides serving on the review panel, another thing Ewan did in 2014 was manage the campaign of Josh Van de Wetering, who ran unsuccessfully for county attorney against Pabst. That election is over now, as is Ewan's involvement as a special prosecutor in State v. Timothy Eugene Schwartz.

Shortly after Pabst took office in January, she announced the Missoula County Attorney's Office would no longer use special prosecutors. Ewan was off the case, despite the moral victory of a hung jury. Pabst replaced her with Deputy County Attorney Mac Bloom. Exactly why Pabst made this decision is another question in which everyone agrees what happened, but no one can agree on one person's state of mind.

There is no question Jane Doe objected to the change in prosecutors. She learned Ewan was off the case in February, one year after she reported her assault and a week before she returned to Missoula for the second trial. In that moment, she says, she felt "screwed."

"It made no sense to me," she says. "Jenn was amazing. She didn't only build a relationship with me, she built a relationship with all my witnesses—every one of them."

Jane Doe says she was told of the change by Clark, who called her a few minutes before Ewan did. She says she tried to contact the county attorney's office in the days that followed, but no one would return her calls. The office maintains that Jane Doe's voice mailbox was full. A few days later, Jane Doe returned to Missoula for a pretrial meeting with Clark and Bloom.

"He didn't say much to me, besides that he was going to try really hard," Jane Doe says. "It was awkward, because I built a relationship with Jen Clark and Jenn Ewan. I'm like 'Okay, now I have to start over.'"

Jane Doe says Bloom was friendly and enthusiastic, but the atmosphere during their meeting was strained. At one point, they talked about fishing. When Clark and Bloom asked Jane Doe if she wanted to speak to Pabst, she said no. Then Pabst walked in and asked her if she had anything to say.

"When she came in, I didn't even want to look at her," Jane Doe says. "I feel like no matter what I say now, she's just going to come back with something that's going to make me mad." She has not spoken to Pabst since that meeting.

Via email, Pabst says her decision to take Ewan off the case had nothing to do with politics. She instituted the new policy in order to give younger prosecutors valuable trial experience. Although Ewan was the only special prosecutor at the time the policy was announced, Pabst says she did not intend to target her. She writes:

"Last fall, during preparations for taking office, among many other things, [Deputy Chief County Attorney] Jason [Marks] and I discussed a policy shift to discontinue our predecessor's practice of allowing volunteers, with little or no relevant experience, to represent our office and prosecute our cases. Jason and I shared concerns about quality control and potential liability that arises when we allow volunteers to appear for us in court absent a conflict of interest."

click to enlarge When Missoula County Attorney Kirsten Pabst took office in January, she inherited 38 pending sexual assault cases. “If you can’t look at yourself in the mirror and say, ‘I want to do a better job,’ then I think you need to get out of public service,” Pabst says. “I can’t tell you that we’re all the way there yet. I can tell you that we’re very committed to being better sexual assault prosecutors.” - PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters
  • When Missoula County Attorney Kirsten Pabst took office in January, she inherited 38 pending sexual assault cases. “If you can’t look at yourself in the mirror and say, ‘I want to do a better job,’ then I think you need to get out of public service,” Pabst says. “I can’t tell you that we’re all the way there yet. I can tell you that we’re very committed to being better sexual assault prosecutors.”

Pabst says she planned the new policy before she learned of its impact on the Schwartz case. She describes the new mentoring program as generally well-received, except for the complaints from Ewan and Jane Doe. Since February, Pabst allowed Ewan to continue working Jane Doe's case as a victim's advocate.

"The victim expressed satisfaction with the modified plan," Pabst writes, "despite trepidation over the increasingly complicated trial process in her case."

In our interview, however, Jane Doe expressed dissatisfaction with the change. She likes Bloom, she says, but she regards the loss of Ewan as a catastrophe.

"It's kind of not fair, because he doesn't know anything," she says. "He doesn't know my personality, and he doesn't know anything about me besides what happened."

The effect of the switch on State v. Timothy Eugene Schwartz is hard to determine. Speaking on background, two other deputy county attorneys agreed that securing a guilty verdict would be difficult no matter who prosecuted the case alongside Clark. Both agreed the outcome of the third trial would not be a fair evaluation of Bloom's competence, because juries vary wildly. But Ewan, who also speaks highly of Bloom, cannot see any upside to the change.

"I was vetted through Van Valkenburg," she says. "I can't imagine why [Pabst] legitimately wouldn't want me to remain, for free, on a trial that I've already tried."

The only other special prosecutor to have tried more than one case for the Missoula County Attorney's Office in recent years is Adam Duerck, who volunteered to prosecute the case against Jordan Johnson, whom Pabst defended. Duerck was also a candidate for county attorney, and he ultimately supported Van de Wetering in the 2014 campaign.

Although Pabst's prohibition on special prosecutors is an across-the-board policy, it has thus far only affected Ewan. The office also carved out an exemption earlier this month, when it appointed Sanders County Attorney Robert Zimmerman as a special prosecutor for Missoula County on May 5. Such an appointment is not uncommon and, in this case, resolves a conflict of interest: Pabst advised the defendant in that case on another matter when she was in private practice.

Did Pabst's decision to remove Ewan from State v. Timothy Eugene Schwartz hurt Jane Doe's feelings? Yes. But did the new Missoula County attorney realize what she was doing when she drafted the new policy? Did she play politics with a rape case?

Pabst says she didn't know the details of the Schwartz case when she drafted the new policy. From an administrative perspective, building talent in-house rather than relying on outside volunteers makes sense. It just happened to ignore the wishes of a rape victim at a moment when the Missoula County Attorney's Office was under fire for doing just that.

On Wednesday, May 27, Bloom delivered the prosecution's opening statement in the third trial of State v. Timothy Eugene Schwartz. He sounded emphatic but not theatrical, systematically outlining the state's argument against the defendant. If he was nervous about presenting his first felony case to a jury, he didn't show it.

Lisa Kauffman delivered the opening statement for the defense. She said the facts of the case do not add up to rape and reminded the jury that the burden of proof falls on the prosecution. Even if they believe Jane Doe, she said, "She's not a victim until you decide she's a victim."

Kauffman pointed out that by her own account, Jane Doe did not physically resist Schwartz's attempts to have sex with her, nor did she scream or call out to her roommate, who was asleep only a few feet away. She also mentioned that Schwartz was born and raised in Montana, while Jane Doe is from California. Throughout the trial, Kauffman referred to the Plan B contraceptive Jane Doe took the next morning as "the abortion pill."

The defense's central argument was that Jane Doe regretted having sex with Schwartz and concocted the rape story to make her friends stop teasing her. Kauffman and later Smith cited the text message Jane Doe sent the next morning, when Schwartz was still in the room and the girls were messaging back and forth as they waited for him to leave. At one point, the girls asked Jane Doe if she had sex with Schwartz. She texted in reply, "He was pretty good in bed, but he needs to go. LOL."

The defense argued this message showed Jane Doe initially regarded the sex as consensual, then decided she had been raped amid pressure from other girls on her floor. They noted that she did not report the assault until around 4:30 p.m. the next day, after she and her friends went dress shopping at Southgate Mall.

During her testimony, Jane Doe said she sent the text because Schwartz was still in the room, and she was afraid of how he might react if her friends confronted him. She said she just wanted everything to be normal and that she did not come to terms with what had happened until later in the day.

According to expert witness Jean McCallister, such counterintuitive behavior is common among rape victims. As a mental health professional unfamiliar with the facts of the case, she testified that a victim often experiences a "pseudo-adjustment phase" after trauma, when she tries to convince herself that everything is normal and sex was voluntary. McCallister also said that while most people assume they would violently resist a rape, many female victims find themselves in a state of shocked immobility.

"When we are traumatized, we have much less access to our prefrontal cortex, where we make decisions," she said. Trauma shifts control to the amygdaloid cortex of the brain, which chooses among three options: fight, flight or freeze.

Clark and Ewan considered McCallister's testimony instrumental to the prosecution's case. After the second trial collapsed during jury selection, they had to wait three months for a new trial date that would accommodate McCallister's schedule. Ewan says it was worth it to combat misconceptions about how rape victims are supposed to behave.

"[Juries] hold sex assault victims to this odd standard," she says. "You must do this and this and this. I think it's easier to get away with rape than with other crimes—not just here, but all over. I don't think Missoula is any different from other areas."

Although McCallister didn't know the details of State v. Timothy Eugene Schwartz, her testimony was remarkably consistent with Jane Doe's description of her response during the assault. When the victim took the stand, she described feeling frozen as Schwartz began pulling off her clothes.

"In my head it felt like I was screaming, but I wasn't," Jane Doe said, before starting to cry. After Judge Larson called a brief recess, Jane Doe continued, "I froze. It was like something came over me. I couldn't move. I couldn't speak, but it felt like I was trying. I did the exact opposite of what I said I would do."

Throughout Jane Doe's testimony, she was interrupted by noises from construction in the surrounding rooms of the courthouse. The courtroom stenographer seemed to have a hard time hearing her and asked Jane Doe to stop and repeat herself at least 25 times.

"I wanted it to be morning time," Jane Doe said.

"I'm sorry?" the stenographer asked.

"I wanted it to be morning time," Jane Doe said again, louder and more slowly. "I wanted him to be gone. I wanted it to be over."

Schwartz watched Jane Doe from the defense table with the same mild expression that he had worn throughout the trial. He did not look away.

Schwartz's remarkably consistent facial expression and flat vocal affect posed a problem for the defense. He is slender, with a long jaw and high cheekbones that magnify the blank quality of his face. Even as he listened to Jane Doe describe his "demonic" appearance as he forced himself upon her—an account Schwartz insists is false—he did not outwardly show any emotion.

Clark and Ewan both say it was a mistake for Schwartz to testify in the first trial. They say the jurors they interviewed after that deadlock found him hard to believe, and Fowlkes' account supports that claim. In her own testimony, one of the other women from the dorm floor said she found Schwartz's apparent lack of emotion unnerving"no facial expressions, nothing," she said.

After he was charged in this case but before the first trial, Schwartz pleaded guilty to a separate charge of burglarizing a ski shop outside Bozeman. Police connected him to the crime partly because he posted pictures of himself posing with stolen gear on Facebook. Since his last appearance in court, he had gotten new glasses: larger, thicker-framed, black. He wore a blue checked shirt, khaki slacks and white sneakers.

The defense called him to the stand after its only other witness failed to appear. Schwartz was calm and cheerful, testifying that he is 20 years old now and was 18 on the night in question. His parents divorced when he was 8.

"I spent a lot of time with my family," he said. "We had dinner together almost every night."

Schwartz described the evening in much the same way as Jane Doe did, with important differences. He said he and his friend gave money to a homeless man while the women were inside Albertson's trying to buy beer. He said after they returned to the dorm, Jane Doe abruptly sat on his lap and began kissing him.

"I don't know what caused it," he testified. He said after her roommate went to sleep, Jane Doe invited him into her bed and helped him undress her. After he asked if she wanted to have sex and she said yes, he said she wrapped her legs around him and moaned with pleasure. "I think she had an orgasm," he said.

click to enlarge On Friday, May 29, a jury found defendant Timothy Eugene Schwartz not guilty of the charge of sexual intercourse without consent. Later, one juror said, “He made love to her without her consent. But there wasn’t enough evidence to prove that.” - PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters
  • On Friday, May 29, a jury found defendant Timothy Eugene Schwartz not guilty of the charge of sexual intercourse without consent. Later, one juror said, “He made love to her without her consent. But there wasn’t enough evidence to prove that.”

On cross-examination, Clark asked if Schwartz thought it was odd that his version of events was almost exactly the same as hers, except for the part where he secures affirmative consent for sex. He did not. He did, however, recant his earlier statement that he flipped Jane Doe over, saying instead that he gently rolled her over after he asked permission. Clark asked him why his story changed.

"I guess talking about it now, it's coming back clearer," he said.

On Friday, Clark delivered the state's closing arguments. She reminded the jury that the testimony of one credible witness is enough to convict the defendant of sexual intercourse without consent and that they could either believe Schwartz or believe Jane Doe. The text message and her delay in reporting the rape might seem to contradict Jane Doe's story, Clark said, but they were consistent with what we know of sexual assault and trauma.

"When fear is in the room, consent is not," Clark said. "This case, ladies and gentlemen, is what rape looks like."

In the defense's closing argument, Smith disagreed. He said "mean girls on the floor" pushed Jane Doe to say she was raped by teasing her about what had actually been consensual sex. He said that pretending she had been raped restored her popularity, and that she latched onto "a public issue" to turn her friends' teasing into sympathy.

"This is a case about regrettable sex," Smith said. "Regrettable sex is not rape. Drama is not trauma."

The jury took these arguments and the testimony of the witnesses into sequestration around noon. They deliberated for about four hours before giving the bailiff a note for Judge Larson, which he read to the court:

"At this time, we are unable to reach a decision."

At the prosecution's urging, the judge read what is known as the "dynamite instruction," reminding the jury they agreed to render a verdict in the case, and there was no reason to believe another jury could do better. He sent them back to the deliberation room to decide whether to reconvene on Saturday or on Monday morning. At 5:30, the jury sent Judge Larson another note:

"We are still hopelessly deadlocked. We will stay tonight to continue."

After ordering dinner, the jury returned to the courtroom with a verdict at 7:05 p.m. The defendant, Timothy Eugene Schwartz, was not guilty of the charge of sexual intercourse without consent.

The prosecution looked stunned. A witness laid her head on Jane Doe's shoulder and cried. Two of the women on the jury also cried, as did Kauffman. The defendant wore the same mild expression he had kept throughout the trial.

Outside the courthouse, juror Pat Neblock told Kathryn Haake of the Missoulian that the jury thought Schwartz had raped Jane Doe and believed her story, but the prosecution hadn't presented enough evidence to overcome reasonable doubt.

"He made love to her without her consent," Neblock said. "But there wasn't enough evidence to prove that. And if there was, we all would have convicted him right then and there. But there wasn't."

The next day, Clark says the jurors she interviewed told her the same thing. She says three or four had held out for a guilty verdict until they heard the dynamite instructions, which they took to mean that they had to render a decision. From there, the holdouts switched their guilty verdicts to reach a consensus.

"They didn't believe the defendant," Clark says. "They believed her, but they didn't think he knew the sex was nonconsensual. Some of them wanted more evidence. What more can we give them? What more can we do?"

This story was updated June 5 to clarify the brief meeting between Jane Doe and County Attorney Kirsten Pabst before the second trial. That interaction was not required by law, as previously reported. The Indy regrets the error.
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