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Why the Baylor rape case plea isn’t all that surprising to lawyers

McLennan County district attorney Abel Reyna retires at the end of the year.

“I want to tell my story to the jury and in front of him, so he knows exactly what he did to me! I want my witnesses to have a chance to tell what they saw,” she said in a letter to her attorney.

Lawyers who handle sexual misconduct allegations said plea deals are common in such cases, and cautioned against rushing to judgment without knowing the context for the outcome.

But because the case never went to trial, the public may never fully understand the state of evidence that led to the outcome — and that’s more concerning to some lawyers than the actual plea bargain that spared the former fraternity president jail time or sex offender registration.

Anderson’s lawyers released a statement on Friday saying they had never seen a case with so many misrepresentations of what occurred. They said the encounter was consensual and called the victim’s claims that he choked her and left her for dead “fabrications” that she only reported two years after the incident. Her lawyer did not return a request for a response to the defense statement.

Anderson was expelled from Baylor after a campus Title IX investigation, a university spokeswoman said. While a student at the University of Texas at Dallas, he pleaded no contest in October to a lesser charge of unlawful restraint in an agreement with the McLennan County District Attorney’s office.
In exchange for his plea, Anderson was offered deferred adjudication probation — meaning he won’t spend a day in jail, and his record will be expunged in three years if he pays a $400 fine and submits to psychological, alcohol and drug treatment. Judge Ralph Strother approved the plea last week in state court in Waco, sparking criticism that the outcome was too lenient given the allegations.
The news prompted an online petition calling on UTD to remove him from campus, followed by the school’s announcement that it was banning an unnamed student fitting his profile from commencement activities.

Outgoing District Attorney Abelino “Abel” Reyna stood by the outcome, saying the plea “achieved the best result possible with the evidence at hand.” His office declined to comment for this story.

McLennan County district attorney Abel Reyna retires at the end of the year.

Without a trial to lay out all the evidence for a jury to scrutinize, the public is wont to jump to conclusions — especially in a case with such a wide disparity between the alleged conduct and the severity of the punishment, said defense attorney Gloria Allred. She is not affiliated with the case, but she has represented sexual assault accusers in high-profile cases, including Bill Cosby’s accusers.

More troubling, Allred and other lawyers said, is the victim’s claim that the district attorney’s office never consulted her regarding the plea, and why the prosecutor told her she offered the plea.

Allred worries that the outcome will deter crime victims from coming forward when victim cooperation is critical to successful prosecutions.

“Nobody can require a prosecutor to take a case to trial. Nor can they prevent (a prosecutor) from taking a case to trial,” she said. “But there seems to be such a disconnect between what the victim said happened and the sentence that naturally the public is going to have a lot of questions, and it’s not helpful when we don’t know the evidence.”

Here’s what lawyers who spoke to CNN urged the public to keep in mind when evaluating plea bargains in sexual assault cases.

Why a case might end in a plea to lesser charges

Plea bargains for reduced sentences are common in sexual assault cases, said the president of the national Association of Prosecuting Attorneys, and five defense lawyers who spoke with CNN.

Such cases can be tough to prove beyond a reasonable doubt, they said — especially when they lack witnesses or corroborating evidence, or if they hinge on consent.

Cleveland-based lawyers Susan Stone and Kristina Supler specialize in student disciplinary matters and Title IX investigations. They represent students and professors accused of misconduct as partners and co-chairs of Kohrman Jackson & Krantz Education Law and Student Defense Practice Group.

What it takes to prosecute a sex crime

Stone called Anderson’s case a “thoroughly typical” example of how criminal cases proceed through the system.

“The reality is, on a regular basis, cases are charged with various offenses, felonies and misdemeanors, and through the process in the legal system, charges are amended and the parties agree to a plea,” she said. “What I can tell you is, rarely a case ends the way it is charged.”

The nature of sexual assault allegations tends to elicit an emotional response from the public that’s hard to set aside, Supler said. But when a prosecutor offers a plea deal or declines to press charges, it’s usually because they don’t believe they have sufficient evidence to convince a jury of a defendant’s guilt — and the public is not privy to everything the prosecutor knows.

“What a lot of people who are not lawyers may have a hard time understanding is that, when there is a plea, it’s because there are problems with the evidence and the prosecutors can’t prosecute their case beyond a reasonable doubt.”

Prosecutors in the Baylor case indicated there were possible evidence problems. Assistant District Attorney Hilary LaBorde wrote in a letter to the victim and her parents that “conflicting evidence and statements” in Anderson’s case made “the original allegation difficult to prove beyond a reasonable doubt.”

“Any lawyer can issue a statement, but taking a statement and proving the truth of its contents beyond a reasonable doubt to a jury, when a complaining witness is subject to cross examination, is a different task entirely,” she said in a separate statement after the plea was accepted.

“Given the claims made publicly, I understand why people are upset. However, all of the facts must be considered and there are many facts that the public does not have. In approving this agreement, Judge Strother had access to all the statements that have ever been made by all people involved and agreed that the plea agreement offered was appropriate in this case.”

CNN legal analyst Mark Geragos said it’s hard for him to believe that a prosecutor would “give away” a viable case in the era of #MeToo, when sexual misconduct allegations are being taken more seriously than in previous years. He urged those who are critical of the judge to consider that the district attorney’s office made the offer in the first place.

“If a prosecutor made the offer, either she’s completely out of touch or she realized there are problems with the proof in their case,” he said.

Little to no jail time is common for first-time offenders

The victim in the case decried the plea for shielding Anderson from time in custody, alleging that he may continue to prey on women.

“Jacob Anderson will most likely rape again. He is now free to roam society, stalk women and no one will know he is a sex offender. Jacob Anderson and all rapists who get away with their crimes will never be cured, never change. If anything they will be emboldened by their power over women and their ability to escape justice and punishment,” she said in her victim impact statement.

But little to no jail time is common for first-time offenders who have had no prior contact with the criminal justice system, said the lawyers who spoke with CNN.

When prosecutors consider charges, they look at the evidence and whether they can prove the allegations, said David LaBahn, president and CEO of the Association of Prosecuting Attorneys. Then, prosecutors look at the offender to determine the outcome that will balance justice for victims with long-term goals such as public safety and reducing the likelihood of reoffending, he said.

State District Court Judge Ralph Strother accepted a plea agreement by former Baylor University fraternity president Jacob Anderson.

For first-time offenders who are not considered imminent threats to the public, prosecutors and judges are encouraged to consider alternatives to incarceration, such as treatment or diversionary programs, in the hopes that their first offense will be their last, LaBahn said.

With detention centers overcrowded, he said, imprisonment should be reserved for society’s most dangerous offenders and the focus should be on rehabilitating offenders to end the cycle of violence.

“You cannot arrest, prosecute and jail yourself out of criminal justice problems … you need to address the cause,” he said. “If you can address the cause, you reduce the criminality, but until you address the cause, the criminality is going to continue.”

What about the victim’s rights?

More concerning than the plea itself, LaBahn said, is the victim’s claim that the district attorney’s office did not consult her before offering it to Anderson. Most states, including Texas, have a victims’ bill of rights enshrined in state law, which affords them the opportunity to be notified about decisions regarding an offender.

“It’s hard to know whether a result is proper or not without knowing the specific context,” he said.

“But the treatment of the victim, that can’t be explained.”

The victim and her family learned about the plea deal in the media, a fact the prosecutor in the case later apologized for in a letter to them. But the victim was unassuaged.

“I have been waiting two and a half years for this trial. I have been through hell and back and my life has been forever turned upside down. I feel like I should have the right to the trial for the four counts of sexual assault the grand jury indicted him on,” she wrote her lawyer.

“She (the prosecutor) has not kept me informed and has not discussed the plea with me at any time, other than to say she would not offer him one. I was furious and devastated when I read the newspaper article that she was basically dropping the sexual assault charges. And then in utter shock when her reason was because she lost a completely different case so she didn’t trust a jury to do the right thing.”

In her letter, prosecutor LaBorde said that a jury’s verdict of not guilty in another rape case influenced her decision. She said the jury in the previous trial “engaged in a lot of victim blaming,” treatment that she thought the victim in Anderson’s case would also experience because the behavior of the two victims was similar.

A prosecutor refused to try an ex-frat leader's sex assault case. Here are her reasons why

“It’s my opinion that our jurors aren’t ready to blame rapists and not victims when there isn’t concrete proof of more than one victim. I have had success in trying college aged defendants yes, but in retrospect, ONLY when they have multiple victims,” she wrote. “Multiple victims put the focus properly on the criminal’s conduct. That didn’t happen when there was only one victim and one event to talk about.”

Though it’s not clear exactly which similarities she was referring to, in the previous case against a defendant named Hunter Morgan, the victim had the defendant’s DNA in her underwear and injuries to her genitals, LaBorde wrote. In Anderson’s case, his lawyers said no DNA evidence links him to the incident.

In her letter, LaBorde also referred to the strength of the medical evidence regarding the injuries the victim experienced as a virgin, saying her injuries were more likely to be explained away because such injuries are common when someone has her first sexual encounter.

“The research suggests that victims with no sexual experience are more likely to be injured because a sexual encounter is their first,” LaBorde wrote. “So medically speaking, (this victim’s) innocence and lack of experience makes the medical evidence less helpful.”

LaBorde also raised differences between the defendants that she thought might make a jury more sympathetic to Anderson.

“I actually thought the Hunter Morgan case was stronger than Jacob Anderson’s because Morgan admitted the victim was intoxicated, too intoxicated to consent, and he admitted he wasn’t intoxicated at all,” she wrote. “One weakness I’ve always identified with Anderson is that he was drinking also — and although I think he’s exaggerating — he acts as though he was extremely intoxicated at the time he was at the frat party.”

The decision to not go to trial

Allred said the leniency Anderson experienced was “more of the same” in a criminal justice system that gives defendants in sexual assault cases the benefit of the doubt over the accuser.

The prosecutor’s statements about why she chose not to go to trial show how the system has failed to keep up with the cultural reckoning prompted by #MeToo, Allred said.

Allred acknowledged that proving a case beyond a reasonable doubt is an uphill battle. But she questioned the prosecutor making her decision to not try the case based on past outcomes, she said, because each case is different.

And if past jurors have shown a tendency to blame victims, she said, it’s a prosecutor’s job to call witnesses and present evidence to dispel myths about how victims behave after experiencing a traumatic event.

“There’s only one way we’re going be able to move forward, and that’s if juries are educated on what to expect from a victim,” she said. “That’s a better alternative than saying, ‘We can’t go to trial because they may blame her or shame her.'”

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The victim shared similar concerns in her letter to her lawyer.

“This is the reason rape victims hesitate to report the crime. I had the courage to report the crime, go through an investigation, wait all these years to testify I have had to courage to keep on living so that I can testify.”

Anderson’s case drew comparisons to the trial of former Stanford University athlete Brock Turner, who spent three months behind bars after a judge went against a prosecutor’s recommendation for a harsher sentence. In Turner’s case, it was clear that the sentence was “awful but lawful,” LaBahn said, because evidence and witness testimony was presented in open court. But in Anderson’s case, the truth is less clear, he said.

Even when the evidence isn’t so clear cut, LaBahn said there’s merit to bringing a case to a grand jury or to trial if it’s what the victim wants: It allows them to have their day in court.

“I would like this not to become a situation where others don’t report based on the outcome of this case,” he said. “Each case is different, and we really do need the victim’s involvement.”

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