The sexual assault trial of a Baylor University football player bogged down Wednesday after prosecutors challenged the investigative credentials of a Baylor dean and a potential defense witness threatened to invoke his right against self-incrimination.
Judge Matt Johnson of Waco’s 54th State District Court recessed the trial about 2 p.m. after attorney Jonathan Sibley, who represents Sam Ukwuachu, asked for time to review cellphone documents supplied Wednesday to the defense by the state that could damage his case.
Ukwuachu, 22, a former freshman All-American at Boise State University, is being tried on two counts of sexual assault in an alleged off-campus incident in October 2013.
After prosecutors Hilary LaBorde and Robert Moody rested their case Wednesday morning, Sibley recalled the 20-year-old alleged victim, a former Baylor soccer player who testified Tuesday that Ukwuachu sexually assaulted her at his South Waco apartment while she screamed and repeatedly yelled “no.”
Sibley told jurors in opening statements that Ukwuachu’s roommate, Peni Tagive, was in his room during the alleged assault and is prepared to testify that he didn’t hear anything in the apartment after hearing the pair enter shortly after 2 a.m.
The alleged victim testified that she doesn’t think Tagive was there during the assault because she said he would have heard her screams and run to investigate.
But prosecutors supplied Sibley with Tagive’s cellphone records from that night, which Moody told the judge show that he was not in the apartment because he was using his phone and it was linked to towers elsewhere in town at the time.
While the jury was at lunch, Sibley told the court that Tagive now is threatening not to testify or to invoke his Fifth Amendment rights because it appears he lied in previous statements to the grand jury and the university.
In other action outside the presence of the jury, prosecutors challenged the “expert” designation Sibley tried to bestow on Bethany McCraw, Baylor’s associate dean for student conduct administration.
With the jury still at lunch, the judge heard testimony from McCraw about her office’s investigation into the woman’s charges.
Sibley wants to call McCraw to say that Baylor officials determined from her investigation that there was insufficient evidence to support the woman’s claims of sexual assault.
Relying on interviews
In cross-examination from LaBorde, McCraw said she relied on her interviews with the woman and Ukwuachu; a polygraph that Sibley has said Ukwuachu passed; copies of text messages between the pair; and interviews with Tagive and a friend of the woman’s before determining “by a preponderance of the evidence” that the investigation should not “move forward.”
Sibley has said Baylor cleared Ukwuachu to play football until he was indicted several months later.
LaBorde asked McCraw why she didn’t get records from Boise State, which LaBorde said indicate that Ukwuachu has a history of violence toward women and led to his dismissal from the team and his transfer to Baylor in 2013.
She asked why McCraw didn’t review a report from a nurse who performed the sexual assault examination, who testified Wednesday that she found signs that the woman had been assaulted. She also asked her why she didn’t interview a Baylor psychologist, who had multiple counseling sessions with the alleged victim and who diagnosed her with post-traumatic stress disorder because of the alleged assault.
McCraw said that records from other schools are difficult to get and that Baylor officials don’t like to pry into student counseling issues, especially those that might involve mental health concerns.
She said she asked the alleged victim for a copy of her examination, but she didn’t have one. LaBorde suggested she could have gotten a copy from the DA’s office.
Ukwuachu, who went to Pearland High School, graduated from Baylor in May and is taking graduate courses. He has not played at Baylor since transferring from Boise State.
The trial is set to continue at 9 a.m. Thursday.