Missoula (9 page)

Over the next few weeks, Detective Brueckner interviewed Ralph Richards, Greg Witt, Smith’s roommate, and a number of other witnesses.
And then in early November, Brueckner phoned Kaitlynn Kelly to update her about the status of the case. “Basically,” Kelly said, “she told me they didn’t have enough evidence to charge Calvin. She said there was no DNA found on anything I gave them….She made a big deal of the fact that I’d thrown my sheets away, as if that was the only evidence they had. She didn’t say anything about my bloody clothes or the bloodstained mattress….She didn’t say anything about the forensics exam….Nothing about the video of him walking out with my goddamn pants. She just shut me down. That was that. I got the shitty end of the stick.”

After a victim has reported a crime to the police, many people believe that the decision whether or not to charge the suspect with a crime, and then prosecute the suspect, is the prerogative of the victim. News media often contribute to this misconception in stories about rape victims by reporting that a victim “declined to press charges.” In fact, the criminal justice system gives victims no direct say in the matter. It’s the police, for the most part, who decide whether a suspect should be arrested, and prosecutors who ultimately determine whether a conviction should be pursued.

To make an arrest and prosecute an individual in criminal court, the police and the prosecutor must possess enough evidence to lead a reasonable person to believe that the charge is probably true. This fundamental legal standard is commonly referred to as “probable cause.” Brueckner’s announcement that Calvin Smith would not be prosecuted because of a lack of probable cause was, and remains, hard to fathom. It would have been a challenging case to present to a jury, and it might have ended with Smith being acquitted. But rapists have been charged, prosecuted, tried, and legitimately convicted with much less evidence than the Missoula Police Department and the Missoula County attorney had at their disposal for assembling a case against Smith.

      I
t was difficult for Kaitlynn Kelly to summon the courage to tell her mother and father that she’d been raped. “It was bad—probably the most pain I’ve ever put my parents through,” she told me. Kelly’s father was furious when he learned that the police had punted her case and no charges would be filed. He and Kaitlynn went to the Missoula Police Department to request a copy of her case report, she said, but the police refused to show them anything. “They just jerked us around….My dad was livid.”

Fortunately for Kaitlynn Kelly, she had reported the rape to the University of Montana in addition to the Missoula police, and the UM dean of students, Charles Couture, took her case seriously. On October 20, 2011, shortly after he met with Kelly, Dean Couture sent Calvin Smith a letter notifying him that

I have initiated an investigation into the allegation that you have violated Section V.A. 18 of the University of Montana Student Conduct Code. Section V.A. 18 prohibits rape. Reportedly, on October 1, 2011, you raped Kaitlynn Kelly, in her room in Turner Hall.

The fact that an investigation is underway should not be interpreted in any way as an indication my decision about the allegation has been reached, since the purpose of my investigation is in fact to decide whether the allegation is accurate.

I have scheduled Wednesday, October 26, 2011, to meet with you at 10:00 A.M., in University (Main) Hall 022, to discuss
the allegation and Student Conduct Code rules of procedure. You have the right to have a person of choice, including legal counsel, present throughout any and all of the proceedings….Failure to meet with me would be a serious violation of the Student Conduct Code.

Upon the conclusion of my investigation, if I have found sufficient evidence that you violated the Student Conduct Code as alleged, I intend to seek your immediate expulsion from the University….In the interim, you are to have no contact of any kind with Ms. Kaitlynn Kelly, including third party.

Calvin Smith showed up for his October 26 meeting with Dean Couture alone. Because he hoped to extricate himself from the predicament without having to tell his parents about it, paying for a lawyer was out of the question. Smith had intended to bring his friend Ralph Richards along for support, but Richards was an important witness, and Couture wanted to interview him later, without Smith present. “So I went and talked to [Couture] by myself,” Smith told me. “He was like, ‘All right, I want to hear your side of the story.’ ”

Smith was adamant that Kaitlynn Kelly had consented to the sex they’d engaged in. Throughout their meeting, however, Dean Couture challenged Smith’s assertions, working from what Kelly had already told him. Couture, Smith said, “just kept going on and on about how I needed to tell the truth, and it would just be faster if I told the truth. And then at the very end, he was like, ‘Yeah, you’re guilty….Yup, yeah, you’re going to get expelled.’ ”

For a significant part of this encounter with Dean Couture, Calvin Smith blubbered like a child, just as he had cried at the conclusion of his interview with Detective Brueckner. Smith repeatedly insisted that he had not raped Kaitlynn Kelly and tearfully begged Couture not to expel him. Afterward, realizing he was in way over his head, Smith confessed to his parents that he was in serious trouble.

When Calvin’s mother, Mary Smith,
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learned what was going on, she told me, “I seriously was in disbelief…I don’t know how this could have happened. Especially with him….He does not
have a mean bone in his body.” Mary and her husband retained a highly recommended Missoula attorney, Josh Van de Wetering, to represent Calvin for the remainder of the university’s adjudication of his case.

On November 2, 2011, after interviewing Calvin Smith, Kaitlynn Kelly, and other witnesses, Dean Charles Couture sent Smith a letter that stated,

Thank you for meeting with me recently to discuss the allegation that you violated The University of Montana Student Conduct Code. I have found sufficient evidence to support the allegation that you violated Section V.A. 18, by having raped Ms. Kaitlynn Kelly….My finding and recommended sanctions are based, in part, on the following evidence:

1. Detailed written account from the rape victim, Ms. Kelly, in which she stated that she and you went to her residence hall room to engage in voluntary sex; when she got there she saw that her roommate and her boyfriend were present and asleep, at which time she said “no” to sex because of their presence; she got into bed with you and she went to sleep, only to be awakened by you “repeatedly and violently penetrating her vagina with three fingers”; despite the victim telling you, “stop, no” multiple times, you continued to rape her; later you inserted your fingers into the victim’s anus “with the same force and motion” as you continued to rape her

2. Your admission to having consumed 10 to 12 beers during an alcohol drinking game called beer pong prior to the incident

3. Your admission to having consumed at least two shots of rum, in addition to the beer, prior to the incident

4. Your admission to having been “really, really drunk” during the incident

5. Your admission that you really didn’t remember very much about the incident until sometime later

6. Your admission to having had oral sex with Ms. Kelly

7. Your admission to having inserted your fingers into Ms. Kelly’s anus and vagina (you said you thought you used two
fingers, after I informed you that Ms. Kelly said you used three fingers)

8. Your admission to having said to Ms. Kelly, “It’s okay, I just want to make you squirt”; you said you saw some girls squirt in some pornography you had previously watched

9. Your admission to having followed Ms. Kelly into the female bathroom in Turner Hall after the incident and looking over the top of the stall and watching her while she urinated

10. Your admission to having taken Ms. Kelly’s jeans with you back to your room in Craig Hall after the incident because you wanted a souvenir

11. Your admission to having awakened in your residence hall room and becoming aware of the jeans and not initially knowing whose they were or where they had come from

12. Your admission to later remembering how you obtained the jeans and how they got to your room

13. Your admission to having thrown the jeans away later, because why would someone want to keep them

14. Detailed written account from Ms. Kerry Barrett who viewed several bloody items taken from Ms. Kelly’s room by a Missoula Police Officer; Ms. Barrett observed blood on a pillowcase, mattress pad, mattress, and “a large blood stain on one of the pairs of shorts the detective took”

15. Detailed notes taken from an interview with Ms. Nancy Jones, Ms. Kelly’s roommate; Ms. Jones had been in her bed in a deep sleep during the incident; she was awakened when she heard the door to her room slam; she later observed a male (later identified as you) bend over and pick something up (later identified as Ms. Kelly’s jeans and belt) and leave the room; Ms. Jones saw blood all over her roommate’s sheets. Ms. Jones heard sobbing in the study lounge next door; she went in and found Ms. Kelly sobbing hysterically; Ms. Kelly told her what had happened; Ms. Kelly grabbed three fingers on one hand with her other hand, and told Ms. Jones that the unidentified male at the time (later identified as you) was “stabbing her” with his fingers. Ms. Jones said she noticed later that morning the bloody sheets were gone, and that Ms. Kelly had thrown them away

16. Ms. Kelly went to the Curry Health Center two days after having been raped because of pelvic pain

17. The attending physician found superficial abrasions and bruises on both of Ms. Kelly’s inner thighs

18. The attending physician found abrasions within the “vaginal vault,” and “very tender with any palpitation”

19. The victim’s menses had not yet begun

20. The victim sought services from the Curry Health Center Student Assault Resource Center after her rape

Appropriate sanctions for such egregious behavior are:

1. Permanent expulsion from the University of Montana, effective immediately

2. No access to any University property or University-sponsored activity, effective immediately

You have the opportunity to accept or deny the charge of having violated the Student Conduct Code and/or to accept the sanctions. If you deny the charge and/or [do] not accept the sanctions, you have the right to an administrative conference with the Vice President for Student Affairs, or her designee, and a hearing before the University Court. Please indicate how you wish to proceed by signing on the appropriate line below.

Calvin Smith denied the charge and asked to appeal Dean Couture’s ruling at an administrative conference with the Vice President for Student Affairs, Teresa Branch, which was scheduled for November 7. At the conclusion of the conference, Vice President Branch concurred with Dean Couture that Smith was guilty of rape and should be expelled. According to Smith, Couture then offered him the university’s equivalent of a plea deal: If he voluntarily withdrew from the university instead of forcing the institution to expel him, nothing about the rape would appear on Smith’s record. Smith told me that he never even considered accepting the offer and explained to Couture, “I’m not going to say that I did this.” Instead, Smith appealed Branch’s ruling, as the Student Conduct Code allowed, to a higher
body called the University Court. A hearing before this court was scheduled for the afternoon of November 18, 2011.

BY DESIGN
, the UM adjudication process differs in crucial ways from the way rape cases are handled in the criminal justice system. When the administrators of a university are confronted with a rape allegation, they are likely to have two predominant goals: to determine the facts as quickly and as accurately as possible; and, if the accused student is subsequently found guilty, to protect other students by immediately banishing the rapist from the campus. Like their counterparts in the criminal justice system, university officials understand that they also have a grave responsibility to avoid punishing the innocent. But because the harshest penalty a university can impose is expulsion—which does not deprive an accused student of his liberty or saddle him with a criminal record—most universities, including the University of Montana, believe it is more important to discover the truth than to protect the rights of the accused at any cost.

Unlike the university adjudication process, the American criminal justice system routinely allows the suppression of evidence and other procedural actions to ensure that the constitutional rights of the accused aren’t violated and requires the prosecution to prove its case “beyond a reasonable doubt” to obtain a conviction. Inevitably, going to such lengths to protect the rights of the accused sometimes results in guilty parties escaping accountability. This is widely understood to be a cost of protecting sacrosanct civil rights enshrined in the U.S. Constitution. As the English jurist William Blackstone famously pronounced in the eighteenth century, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

But the University of Montana, like every other American college and university, is obligated by Title IX of the Education Amendments of 1972 to protect students from sexual harassment and sexual violence. Although the Title IX legislation was intended primarily to create equal athletic opportunities for male and female students, it also required institutions of higher education to establish a comprehensive system for handling sexual-assault complaints.

Because UM’s adjudications of alleged rapists are disciplinary proceedings rather than criminal proceedings, the university is not bound by the rules of evidence that pertain in the criminal justice system and is, therefore, free to give as much weight to the rights of alleged victims as to the rights of the individuals they have accused. To prevent legalistic quibbling from obscuring evidence and, should a rapist escape punishment, potentially endangering members of the campus community, UM tries to minimize the role of lawyers in its handling of rape cases.

As Dean Couture pointed out to Calvin Smith, the Student Conduct Code gives students accused of violating the code the right to have a lawyer present during all disciplinary proceedings. But the code also dictates that “the role of legal counsel…is limited to
consultation
with the student
only
.”
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During official proceedings, lawyers are forbidden to raise objections or even speak directly to university officials. Beyond whispering in their clients’ ears, attorneys are forced to bite their tongues.

Josh Van de Wetering, the lawyer representing Calvin Smith, was exasperated by his inability to speak up on behalf of his client during UM’s adjudication of Smith’s case. Most lawyers who represent clients in university adjudications are similarly frustrated. At 1:05 p.m. on November 18, less than two hours before Smith’s University Court hearing was scheduled to begin, Van de Wetering sent an e-mail to Dean Couture asking to postpone the hearing until December 2, in order to have more time to obtain police reports about the case.

Smith had by this time learned that three days earlier, Chief Deputy County Attorney Kirsten Pabst declined to prosecute the case. Van de Wetering believed that this information should be considered by the University Court before it arrived at a verdict, and he informed Couture that he intended to call Pabst as a witness for Smith at the hearing. Van de Wetering said he hoped to call Detective Brueckner as a witness, as well.

Couture immediately sent Van de Wetering an e-mail denying his request:

Josh, I am perplexed as to why you waited until less than two hours until the hearing to request an extension. I was informed yesterday that Police Chief Muir had denied your request for the female detective to participate….Based on statements in your email, I think you need to be reminded that you shall not call any witnesses at the University Court hearing. Your client shall call his own witnesses and present his own case. Your participation shall be strictly limited to private consultation with your client. Your client’s appeal shall begin today at 3:00 pm….After I have presented the University’s case against your client, your client may request the Court Chair to continue the hearing on December 2. This is an educational proceeding, not a criminal one.