Missoula (10 page)

Van de Wetering fired back,

I am not seeking to stall the case. I am merely trying to ensure my client has a quality defense against extremely serious accusations that if confirmed will impact the rest of his life. That effort is complicated and its importance underscored by the fact that you have concluded a rape did occur, while trained investigators and prosecutors have concluded it did not, a fact I cannot leave unconsidered….

I understand what my role is, and while I find it oppressive, to think that you, with your education and experience, will be presenting the University’s case while forcing an 18-year-old kid to try to stand up against you by himself, I will abide by the rules. We will be there at 3:00, and I will ask the chair for additional time.

And please rest assured, the entire proceeding has indeed been an education.

The seven individuals on the University Court are appointed by the president of the University of Montana. The court is composed of three undergraduate students, one graduate student, two faculty members, and one staff member. At Calvin Smith’s hearing on November 18, 2011, held in the basement of Main Hall, the chair of
the court was a distinguished professor from the university’s School of Business Administration; she served as the academic equivalent of a judge and ran the proceeding. Dean Charles Couture, representing the university’s interests, acted as the equivalent of a prosecutor, calling witnesses and presenting evidence against Smith.

The first person Couture called to testify was Kaitlynn Kelly, who answered questions posed by Couture and the members of the court for seventeen minutes, providing an abbreviated version of the same information she had previously conveyed in her one-on-one interviews with Couture and Detective Connie Brueckner. The court then received testimony from six witnesses who had been summoned by Couture on behalf of Kelly: Kerry Barrett, Kelly’s roommate, the roommate’s boyfriend, the coordinator of the university’s Student Advocacy Resource Center, and Kelly’s parents.

Ninety minutes into the proceeding, it was Calvin Smith’s turn to present the witnesses he’d asked to testify on his behalf. The first witness to appear was prosecutor Kirsten Pabst, supervisor of the sexual-assault division at the Missoula County Attorney’s Office.

Pabst was forty-four years old and had a commanding presence. She’d been raised by working-class parents in Havre, Montana, a windswept railroad town on the Great Northern Hi-Line, thirty miles from the Canadian border. During her childhood, she told
Missoulian
reporter Kathryn Haake, “when times got lean” her family sometimes lived in a converted garage without running water. In 1985 she enrolled at the University of Montana; she became a fine arts major, but she dropped out before graduating and moved to Great Falls. A single mother at the time, she was working at a restaurant when she decided to return to school to become a paralegal. She eventually got a law degree at UM, and in 1995, a week after having her second child, she went to work as a prosecutor for Cascade County. Two years later she landed a job as a deputy Missoula County attorney, and she had been employed as a prosecutor there ever since.

In 2006 Pabst was promoted to chief deputy Missoula County attorney, with responsibility for supervising the prosecution of sexual-assault cases. By 2011, when she appeared at Calvin Smith’s University Court hearing, Pabst had been married twice, given birth to four children (the youngest of whom was still a toddler), and was an expert
horsewoman and an accomplished artist. With her brash demeanor and shoulder-length blond hair, she cut a distinctive profile around town.

“I was completely astounded when I realized Kirsten Pabst was appearing as a witness for Calvin,” says Kerry Barrett, recalling her reaction when Pabst showed up for Smith’s hearing. “She was in charge of the criminal case against Kelly’s rapist. And here she was at University Court defending him.” Barrett’s surprise grew when she observed Pabst interacting warmly with Smith and his parents, as if they were old friends.

Like Kerry Barrett, Dean Couture disapproved of the county prosecutor’s advocacy on Calvin Smith’s behalf. After the hearing, Couture told Kelly that Pabst’s presence was “totally out of place” and “not appropriate.” Couture frowned on Pabst’s involvement in the university’s adjudication of Smith’s case for several reasons, not least of them being that the university was required to use a very different burden of proof in determining Smith’s innocence or guilt than Pabst had used when she’d declined to file criminal charges against him.

Seven months earlier, in April 2011, the U.S. Department of Education’s Office for Civil Rights had sent a letter to colleges and universities nationwide; it became known as the “Dear Colleague Letter.” In no uncertain terms, it reminded universities of their obligation to protect students from sexual harassment and sexual violence under Title IX. To make it harder for students to rape with impunity, the Dear Colleague Letter decreed that schools must use a burden of proof known as “the preponderance of evidence standard” when adjudicating sexual-assault complaints. To find a student guilty, in other words, a school needed only to determine that, after a review of credible evidence, it was “more likely than not” that the accused individual had committed the offense. More than once during the Calvin Smith hearing, Dean Couture reminded the University Court that this is a much lower burden of proof than Pabst or any other prosecutor was obligated to use in a criminal trial—“the beyond a reasonable doubt” standard.

Kirsten Pabst testified before the University Court, in support of Smith, for forty-two minutes, more than twice as long as any other witness, including Kaitlynn Kelly. Pabst used the opportunity to
explain her rationale for declining to prosecute Smith—and therefore why, in her opinion, it would be a mistake for the University Court to find him guilty of rape. Pabst emphasized that when she’d discussed the case with Detective Connie Brueckner, Brueckner had told her “there wasn’t even probable cause” to file criminal charges against Smith. According to Pabst, she then conducted an independent review of the evidence Brueckner had gathered, “and we both came to the same conclusion: that it wasn’t prosecutable.” Pabst explained that in Montana, prosecutors of sex crimes are required not only to prove that the victim didn’t consent but “to prove that the defendant reasonably knew that she didn’t consent.”

“We get a lot of alcohol- and drug-related cases where there is sexual contact—date rape–type cases,” Pabst continued. “And they are really, really hard cases for us….But this one was different. This one was a little bit more clean-cut, in that, according to all of the witnesses, Mr. Smith and the alleged victim” agreed to have sex. “Her friends, and his friends, both were trying to get them—pardon me for sounding crude—were trying to get them laid….And the victim in fact told the detective that that was her plan: to go back to her room and have sex. So we don’t have the whole really blurry consent issue that we normally do.”

However, when questioned by a member of the court, Pabst conceded, “Of course, somebody can withdraw consent. But it’s unusual to have such a really clear picture of consent going into it, and all of the witnesses are in agreement on that. So that was a really big factor. The other thing was that everyone agreed that Mr. Smith did not finish the sex act. And that he stopped at some point. Here it gets a little bit more blurry, but he was requested to stop at some point where it became uncomfortable for her, and he did.”

A few minutes later Pabst added, “Once there was an affirmative verbal agreement to have sex, so consent was given, she’s really fuzzy on whether or not she verbally withdrew that consent. So it’s not fair for us as prosecutors to expect a suspect to read someone’s mind when they’ve verbally given consent.”

Although Kirsten Pabst took considerable time from her busy schedule to appear before the University Court on behalf of Calvin Smith, she never bothered to speak to Kaitlynn Kelly, in violation of a
Montana law
*
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that requires prosecutors to consult with rape victims. Nor, apparently, did Pabst take the time to listen to the recording of Detective Brueckner’s interview with Kelly, because a number of Pabst’s assertions about what Kelly did or didn’t say to Brueckner are just plain wrong.

For example, when Pabst testified that Smith “was requested to stop at some point where it became uncomfortable for her, and he did,” Pabst failed to mention that the only reason Smith finally stopped, according to Kelly’s testimony, was that she managed to shove him away and flee from the room, after telling him numerous times to cease penetrating her with his fingers and forcing his penis into her mouth.

In her testimony to both Detective Brueckner and Dean Couture, Kaitlynn Kelly was the opposite of “fuzzy” on whether or not she verbally withdrew consent: Kelly adamantly and consistently stated that she said “no” and “stop” many times while Smith was penetrating her. Kelly also clearly asserted that she verbally withdrew her consent to have sex when she initially entered her dorm room and saw that her roommate and her roommate’s boyfriend were present.

When Calvin Smith said, “It’s okay. We’ll be quiet,” in reply to her initial withdrawal of consent, Kelly can’t recall if she reiterated that she wouldn’t engage in sex while other people were in the room. But she is certain that she didn’t say anything that could have been interpreted as an affirmation of consent after she withdrew it upon entering the room. And the University of Montana’s policy concerning rape and other sexual misconduct clearly states that consent cannot be inferred “from silence, past consent, or consent to a different form of sexual activity.”

Kaitlynn Kelly told both Detective Brueckner and Dean Couture that while she was unconscious, and therefore incapable of granting consent, Smith removed her pants and underwear and penetrated her
vagina with his fingers. This prompted a member of the court to ask Pabst, “You can’t give consent when you’re asleep. So even if you’d given it previously, that doesn’t count if you’re asleep, right?”

“Correct,” Pabst replied. A moment later, however, she hedged: “Well, it depends. That’s not really a hard-and-fast rule. But some people would argue that if I go home with someone and we say, ‘Well, we’re going to go have sex,’ and then I fall asleep and wake up and he’s having sex with me—some people would say that’s consensual, and some people would say it’s not.”

The questioner followed up: “What does the law say?”

“I don’t know the answer to that,” Pabst answered. “There is no hard-and-fast rule.”

A different member of the court asked Pabst to confirm that to withdraw consent, “all you have to do is say ‘no’ or ‘stop’ one time, and you have withdrawn consent.”

“Usually that is the case,” Pabst confirmed. “If the defendant’s in hearing, and understanding of that, and he hears someone say ‘no,’…‘no’ means no. There is no question about that if that is conveyed.”

But Kirsten Pabst refused to concede that Kaitlynn Kelly had clearly said “no” or that she had been too inebriated to understand what she’d agreed to do. “There just aren’t that many facts in dispute here,” Pabst told the court. Before Kelly entered her residence hall with Calvin Smith, Kelly told the friend she was with, Greg Witt, that she thought Smith was cute, and she agreed to have sex with him. And Pabst didn’t think Kelly “was too drunk to give consent” at the time.

Dean Charles Couture accused Pabst of jumping to conclusions. Just because Kelly said Smith was cute, Couture wondered, “and they agreed to go back and have voluntary sex, are you assuming that they went and had voluntary sex?” Pabst, he argued, seemed to be ignoring the fact that Kelly withdrew her consent as soon as she and Smith entered her room.

Pabst replied that nothing in the case report she’d received from Detective Brueckner confirmed that Kaitlynn Kelly ever clearly said no. “I have not jumped to any conclusion,” Pabst insisted.

EARLY IN HER
testimony, Kirsten Pabst told the University Court, “There is no better predictor of future behavior than past behavior….With Mr. Smith’s case, he has absolutely no criminal history at all. There is not even a traffic ticket that we could find on the record.” All of Smith’s acquaintances, Pabst said, had described him as “a stellar citizen” who had never been in trouble. Calvin Smith was “happy-go-lucky, kind, compassionate. Those are things that we have to take into account when we are deciding whether or not this is a case that we are going to charge.”

At another point, Pabst said she found it significant that when Detective Brueckner interviewed Smith at the police station and told him that Kaitlynn Kelly had accused him of raping her, Smith “became distraught, and tearful, and extremely sorry that she was upset. He said that he had never meant to hurt her or make her sad….He seemed genuine in his emotions and was really surprised by the accusation.”

As Kaitlynn Kelly listened to Pabst tell the court that Calvin Smith was too kind and compassionate to be a rapist, she was dumbfounded. “Kirsten Pabst refused to even talk to me when I was trying to find out why nothing was being done about my case,” Kelly recalled bitterly. “And then she goes out of her way to show up at University Court to testify for the asshole who raped me? I couldn’t believe it.”

On the advice of his lawyer, Josh Van de Wetering, during the hearing Calvin Smith declined to testify or answer questions from court members. In lieu of giving a statement to the court, Smith asked Pabst to describe the brief statement he gave to Detective Brueckner on October 11, then tell the court what she “thought about it.”

Pabst responded, “Everyone absolutely has the right to remain silent, but it’s impressive to me when people are willing to come forward and tell what happened, openly and honestly, which is what Mr. Smith did with Detective Brueckner….He came in voluntarily and answered all of her questions. According to Detective Brueckner, he sincerely stated that he really thought that [Kaitlynn Kelly] was enjoying what was going on, at least at the beginning, until he realized that wasn’t the case.” Pabst told the court that before Calvin Smith penetrated Kelly with his fingers or penis, “he said that they made out, there was some kissing involved. Much of what he said
mirrored what the victim said about…a brief period of oral sex.” All of which Pabst saw as evidence that the sex was consensual.