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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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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