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"

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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.

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