At the twilight of his long, distinguished career in the criminal justice system, 19th State District Judge Ralph Strother has discovered how one can go from venerable jurist to national pariah in the twinkling of an eye. Faced with ruling on a controversial plea agreement between the McLennan County District Attorney’s Office and a former Baylor University fraternity president indicted on four counts of sexual assault in 2016, Strother announced to a packed courtroom last week that he was approving the plea deal.
This meant no trial or jail time for 23-year-old Jacob Walter Anderson of Garland, no sexual offender status, three years’ deferred adjudication probation on a charge of felony unlawful restraint and a scathing victim’s statement read aloud in court — enough to make the judge as much a villain in the increasingly jaundiced public eye as the frat-boy felon and the embattled district attorney leaving office under his own cloud of scandal.
Fallout wasn’t long in coming, including death threats, even wishes for the rapes of female family members of key participants, plus a petition drive to unseat the judge. Travis County Republican Party Chairman and political pundit Matt Mackowiak posted on Facebook: “It’s time for the Texas Legislature to seriously consider impeaching Judge Ralph Strother.” In response, Waco-based attorney and fellow Republican Josh Tetens suggested Mackowiak and others piling on with their own posts “get the facts before you judge... that’s what [Strother] did and has done for decades.”
Dallas Morning News columnist Sharon Grigsby — a firebrand in lambasting Baylor for its mistreatment of sexual-assault victims in past years — showed thoughtful restraint in her Tuesday column, allowing that, yes, certain facts remain unknown in the case that could re-traumatize the victim if aired by tight-lipped prosecutors pressed to explain the plea deal. She also hailed Anderson’s victim “a 20-something superwoman” for stepping forward and pursuing rape charges. The Associated Press highlighted cases in Strother’s judicial career suggesting a pattern of lenience involving men accused of sexually assaulting Baylor students. Another AP story noted ties of the judge and prosecutors to Baylor and raised the spectre of bias.
Left unmentioned: Strother’s ordering, days earlier, two life sentences “stacked” so they must be served consecutively by a 48-year-old man convicted of sexually abusing a young family member. Left unmentioned: Strother’s stacking 12 life sentences for 51-year-old Andre Evans in 2016 for harboring a 15-year-old runaway and charging a string of men to have sex with her. Longtime courtroom officials say the latter may well be the longest sentence given in county history.
Particularly explosive: The formal response by Jacob Anderson’s victim, a former Baylor student who claimed that, at age 19, she had been handed a drink at a Phi Delta Theta fraternity party off-campus in 2016 and became disoriented before Anderson took her outside and raped her. Her courtroom statement was powerful in its outrage: “Everyone knows Jacob Anderson violently raped me repeatedly and almost killed me. The evidence is overwhelming. Now I not only have to live with his rape and the repercussions of the rape, I have to live with the knowledge that the McLennan County justice system is severely broken. I have to live with the fact that after all these years and everything I have suffered, no justice was achieved. I have to live with the fact that my rapist will go home smiling and happy and laughing at me. He stole my body, virginity and power over my body and you let him keep it for all eternity.”
In remarks unusual for a sentencing hearing, the owlish, 75-year-old judge — an old-fashioned law-and-order conservative in his long-ago days as a prosecutor — sought to suggest the storyline in this case was more complicated. Before announcing his decision, he held up a pre-sentencing file brimming with what courtroom sources say is conflicting evidence — enough to make any conviction less than the slam dunk it might appear at first glance. The file included “extensive information” from the victim, her family and attorney; a memorandum prepared by the defense; and the “very thorough and complete pre-sentence investigation [by the probation department],” the judge said, “so I think I have about as good information as is possible to have about all perspectives and aspects in this matter.”
The judge then said that much of the correspondence and commentary directed his way in the weeks leading up to Monday’s sentencing hearing, “while well-intended, I think falls into three categories: not fully informed, misinformed or totally uninformed.” Then he approved the plea deal amid sobs from the victim.
Yet the nationwide uproar over the Jacob Anderson plea deal is understandable. The case in recent months has come to symbolize a chance for the criminal justice system to finally get it right more than three years after former Baylor football player Sam Ukwuachu, then 22, was convicted of sexually assaulting a then-18-year-old classmate — and received no more than a 10-year probated sentence. (The jury recommended eight years, but Judge Matt Johnson bumped it up by two years.) The trial set off an explosion of damning national coverage about Baylor, transforming the resolutely Christian university, complete with stellar football team, into a symbol of how sexual assaults can go ignored or atrociously mishandled at institutions of higher learning. Other universities suffered similar failures, but Baylor, complete with law school and theological seminary, seemed to top them all.
Since then, the nation has seen a nine-month investigation into Baylor’s mishandling of sexual assaults, the inquiry conducted by a prominent law firm that doesn’t seem to have committed its findings to paper and has raised more questions than answers; more allegations of indifferent, even dismissive treatment of assault victims by Baylor administrators, athletic officials and city and campus law enforcement; and depositions and affidavits questioning Baylor regents’ own motives in sending their popular president and successful football coach packing. Evidence suggests some regents even contorted the facts to lay most of the blame on black football players, a point in serious dispute.
It’s important to remember every individual sexual-assault case has its own set of extenuating circumstances. It’s important to remember one reason prosecutors don’t press every case to full-blown trial is because they have limited budgets, staffing and time — and, more importantly, they have to make decisions on whether justice is even served by pursuing cases to such ends. For instance, is it wiser to press for a plea agreement that places at least some conditions, restrictions and penalties on the accused — or to push the case to trial when there’s enough conflicting evidence that an unconvinced jury could well allow the defendant to go free? Such complicated, layered scenarios defy the mob fervor driving 280-character tweets and Facebook posts.
Unfortunately, when such cases aren’t pursued to trial but wind up as plea agreements, the public and the press — generally dealing with limited evidence — can also reasonably assume justice has been subverted. And, yes, the public is justified in wondering about the facts in this particular case, given all they see daily on the state and national stage from our leaders, including those who presume to be above the law and those dismissive of sexual-assault allegations — a spectacle that came to a head in this year’s heated confirmation hearings for Supreme Court nominee Brett Kavanaugh. The Trib Facebook post of a Baylor student amidst this latest firestorm perfectly captures the problem with a criminal justice system sometimes too discreet for its own good: “I usually give the benefit of the doubt that people in charge have more information than us civilians. That being said, it’s easy to claim everyone is misinformed when you don’t have to prove it.”
Indications are that any effort by prosecutors to explain their side of the equation could have quickly devolved into a he said/she said public charade before lapsing further into outright victim-blaming. McLennan County District Attorney Abel Reyna — overwhelmingly defeated in the Republican primary election in March and now finishing his tenure dogged by allegations of incompetence and impropriety — released a statement suggesting his prosecutorial team’s conundrum: “Let us remind everyone that our oath is to seek justice. In pursuit of that ideal, we must evaluate each case alone on its own merit. Early in this case, law enforcement believed that the victim may have been drugged and this belief has been widely disseminated in the media; however, the evidence did not support that theory. This office stands by the plea offered and believes we have achieved the best result possible with the evidence at hand.”
One can reasonably disagree on all this. In a phone conversation I had with Trib reader Warren Fain, he told of complicating factors in the case he heard from Baylor seniors that echoed some of what we at the Tribune-Herald also heard. Some factors favored Anderson’s side in the matter. However, as Fain noted in a subsequent letter to the editor, “the very least that should be done is to give the alleged victim her day in court to tell her story. She is willing to ‘let the chips fall where they may,’ and so should a fair and impartial judicial system.”
Less convincing: Assistant DA Hilary LaBorde’s hideously written email to the victim and her family after they learned of the proposed plea agreement by reading the Tribune-Herald. Once celebrated statewide for her tenacity in pressing sexual-assault cases, LaBorde explained she offered the deal after a disappointing acquittal in another sexual-assault case with similarities to Anderson’s: “(The jury) engaged in a lot of victim blaming — and the behavior of that victim and (this victim) is very similar. 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.”
In that earlier case, Baylor graduate Hunter Morgan, 25, charged with sexually assaulting a fellow student, rejected a plea deal that would have required him to plead guilty to unlawful restraint, be placed on deferred probation and register as a sexual offender. Morgan’s trial in June pivoted on a victim who testified she couldn’t remember being sexually assaulted because she was too drunk and had blacked out. Medical, physical and DNA evidence convinced her that she had been raped.
In the end, jurors acknowledged evidence linking DNA to Morgan but, to quote one, there were also “too many different theories about how that could happen.” They found Morgan not guilty. Such cases expose an Achilles’ heel in the otherwise formidable #MeToo movement: Sexual-assault cases are justifiably receiving more attention, but jurors aware of its devastating consequences for both accused and accuser are applying more scrutiny to bewildering evidence amid conflicting testimony involving confused memories and wildly different perspectives.
Erin Albin, a 26-year-old graduate student in Baylor’s social work program who led an online petition drive pressing Judge Strother to reject the Anderson plea deal that gained more than 90,000 signatures, acknowledges challenges facing the victim and fears she might be traumatized by such a trial had it happened: “Even though I don’t have a background in the law or the legal system or anything like that, I do have a background in social work and a lot of education regarding trauma and how trauma affects the brain and how trauma can affect the individual. And to ask someone to retell the story of a very violent, traumatic experience in their life — well, the brain remembers certain things and doesn’t remember certain things. That’s a coping mechanism.
“I think perhaps to retell that story is making someone relive that trauma, which isn’t fair,” she told me. “But I still think we should have gone for a trial because at least then it would have been a fair case and justice would have at least had a chance. I understand there are things the general public doesn’t know, but it does seem there was a fair chance of justice [in a trial]. And then you have comments like those by LaBorde that Waco just isn’t ready to convict someone on one rape. It’s like, ‘Well, are you saying there should be more rapes happening in order to have him go to trial?’”
None of what happened last week absolves Jacob Walter Anderson of horrendous behavior. However one looks at this crime, however complicit the victim might or might not have been in whatever happened, Anderson’s leaving an intoxicated woman sprawled on the ground on a February night blackens his character in a most devastating way. His pleading no contest to felony unlawful restraint would seem to confirm he placed his victim in great bodily danger.
Already elements of the case are playing out in the public forum. In remarks to Trib staffer Tommy Witherspoon a day after Strother’s sentencing decision, attorneys for Anderson, reacting to the disastrous portrayal of their client in news and social media, insisted that what the victim left out of her statement in court “was some passionate kissing, groping and grinding by this girl and Mr. Anderson that occurred in front of more than 100 people at this party.” They said the victim’s claim she was choked was “absolutely contrary” to the physical evidence and her statements to police and medical personnel that night. Attorneys disputed her claim she was drugged, insisting no drugs were found in her system. They say no genetic evidence links Anderson to the victim.
Then there’s the Brady evidence notice filed last week by LaBorde. This concerns exculpatory evidence favoring the defense that prosecutors must by law turn over. It only reinforces concerns in the district attorney’s office: “The complaining witness in this case provided a statement attributed to her by her civil attorney and filed in the papers of this cause that includes allegations inconsistent with her prior statements to civilians, police officers and a [Sexual Assault Nurse Examiners] nurse given on the night of the offense. Verbal notice of these inconsistent statements was provided to the defense at the time of the original plea and in two subsequent conversations, the last being December 3, 2018.”
If there’s one thing agreed upon by attorneys for Anderson and his victim, it’s that the public is treating the judge unfairly. Vic Feazell, a former McLennan County prosecutor and the victim’s attorney, took umbrage at the comments of Anderson’s attorneys regarding his client but stuck up for Strother: “It is easy for them to say all that bulls--t after the fact. That is what trials are for. But I am really sorry about any flak Judge Strother is taking. I have known him for 35 years and he is an honorable man. I know he agonized over that decision.”
While prosecutors and the judge may be right in their decision last week, one can also reasonably lament this case didn’t unfold in a courtroom trial, warts and all. In some respects, this is a trial that needed to happen, not just to underline the challenges and responsibilities facing young university students but to further highlight difficulties facing law enforcement, the criminal justice system and beleaguered universities involving sexual assaults soaked in alcohol and blackouts and occurring off-campus — situations only partially addressed by the U.S. Department of Education’s newly proposed Title IX rules for universities’ handling of such matters, including critical guarantees of due process. The Anderson case, trial or no, also confirms the need for a second hearing of state Sen. (and Baylor alumnus) Kirk Watson’s 2017 bill requiring “affirmative consent” between college sexual partners — a concept that apparently confounded too many lawmakers to succeed last session.
As for the victim in this case, she may yet have her day in court. Her civil suit against Anderson and other Phi Delta Theta members could give her that chance, assuming she doesn’t settle for a cash settlement or see the suit dismissed.
In her dramatic courtroom statement last week, Anderson’s victim stated that Anderson and all rapists who get away with their crimes will never be cured and will never change. Anderson, she said, “will most likely rape again.” In any case, the searing notoriety of his crime has reverberated across the nation to such a degree that, at a period of life when a young man should be taking pivotal steps in his career and laying the foundation for a successful life, Anderson will almost certainly be overshadowed by his actions at a frat party in Waco. Even among those ignorant of his past, he’ll be dogged by fears someone will learn about his sins and overturn all he has worked to gain. Already University of Texas at Dallas officials, prompted by a petition drive last week, have banned Anderson from campus, barred him from participating in commencement activities and booted him from graduate school. He was expelled earlier by Baylor. One should remember, too, that probation officials will presumably monitor him closely as the plea deal provides.
Meanwhile, a petition drive pressing for Judge Strother’s removal if he doesn’t resign had gathered more than 42,000 signatures by Saturday evening, a testament to the powerful #MeToo movement that arose from the ashes of Baylor’s troubles and has shaken Washington politicians and Hollywood power brokers since then. The petition argues that, among other things, Strother denied the victim’s Sixth Amendment right to a public trial and embraced LaBorde’s possibly tortured logic that the victim could not prevail in court because of an unrelated rape case. Petitioners may get their wish, though later than sooner: Strother is at an age when state law requires him to step down at term’s end in January 2021. Given death threats, notoriety and crowded dockets, he may well be ready. His decision to delay this week’s child-abuse trial (involving two counts of sexual assault) because of national outrage focused on his courtroom, complete with petition drive, raises another relevant question: Will prosecutors and judges mindful of Strother’s fate consequently steer their decisions out of fear of suffering similar ends in the public crucible?
“For anyone involved in this case, I don’t want harm to come to anyone, even Anderson,” Erin Albin told me. “I think it should have gone to trial and that he should be facing more harsh consequences, but I don’t want any harm to come to him or anyone. One of the deepest fears of my involvement in any of this is that someone will be harmed because of the public outcry. I’ve been flooded with emails and Facebook messages from people across the country asking: ‘What can we do? How can we help?’ I tell everyone to get involved however you can to help sexual-assault survivors and women empowerment. That’s what it really comes down to.”