The Missoula County courthouse
Back in February, I met a young woman who had just returned to Missoula to testify as the principal witness in a rape trial, again. The first trial of State v. Timothy Eugene Schwartz ended in a hung jury. A week before the second trial, Jane Doe learned her special prosecutor had been dismissed by the new Missoula County Attorney. A few days later, the second attempt to resolve State v. Timothy Eugene Schwartz ended in a mistrial during jury selection. Last week, Jane Doe came back to Missoula and told her story in court again. The jury believed her and thought the defendant was lying. They found him not guilty.
“The justice system sucks,” Jane Doe says. She is 20 years old. She came to Missoula for her freshman year of college and left the alleged victim in a rape acquittal.
You can read about her experience over 15 months, three trials and two county attorneys in this feature I wrote for the Missoula Independent. It’s a straight news story—something I don’t do very often, but I think it’s important. If you read one thing I wrote this year that does not portray Ted Cruz as an ambiguously gay detective, read this. We handle rape wrong, not just in police stations and prosecutors’ offices but in jury rooms too. Everyone I talked to wanted to help Jane Doe, but in the end she felt “screwed.” It’s an expression she does not use lightly.
This is infuriating and it’s easy to say that the justice system has failed this woman, but I’m not sure that’s the right way to look at it. The victim may see the hoped-for conviction as a vindication of her accusations, as a validation of her outrage, and as an accreditation of her story, and we rightly want those things for her. But the point of a criminal trial isn’t to procure those things; it can’t be that and also be justice. Notice that it’s called State v. Schwartz, not Jane Doe v. Schwartz. It isn’t for her. The recompense of individual wrongs is the purview of the civil courts. There, if this jury believed her, she would probably win, because that’s a preponderance of the evidence, which is the standard of proof in a civil trial.
The lead prosecutor asks “What more can we do?” Where I live, when someone is convicted of shoplifting, the county collects a criminal fine, but for some reason it has also taken on the expense or at least bother of collecting a civil penalty as a reparation to the victim (the business that was stolen from). I would like to see the state somehow help rape victims file civil suits in addition to prosecuting. (You know, instead of just telling them how hard it will be to convict and pressuring them not to press charges, which is the status quo here.) It wouldn’t offer the same sort of satisfaction as seeing someone go to jail, but it would be something.
I have to assume it was intentional to portray Schwartz as an unfeeling asshole with the description of his demeanor, outfit, and testimony. DB is too good of a writer to let his judgments slip out accidentally. So I am left wondering why those details are worth including in a story about the alleged victim feeling screwed by the justice system. Should the reader be making a judgment call like the jury? Was Schwartz doing something interesting by sitting there mildly and insisting on his innocence? Did he elide the proper scrutiny of the jurors in this wholly he said/she said decision? Perhaps the jurors are assholes too, having opinions about books they haven’t read and deciding facts about witnesses they don’t know.
Maybe I’m forgetting how motivated I was to write about my first trial. After the jury I was on awarded 3 million dollars in punitive damages because they were mainly blue-collar and believed the “rich fat cat” strategy employed by the petitioners, I felt the need to remind the world how tightly the whims of justice are tethered to likability and not rational examination. The jury-speak during coffee breaks turned my stomach. At least half my fellow jurors had made up their minds the first day. By the fifth day, the testimony of the handwriting experts–one for the petitioner and one for the respondent–that agreed forgery was not seriously attempted was just something fact-shaped to kick around while insisting the rich guy conspired to bilk his trustees. Asking “where is the evidence of that” was one of the dumbest questions I could have asked. “Just look at him!”
Great article, and great comments too.