July-August 2016

Pushing past red tape, getting to the truth

Hilary LaBorde

Assistant Criminal District Attorney in McLennan County

Robbie Moody

Assistant Criminal District Attorney in McLennan County

When a file about a sexual assault on Baylor University’s campus landed on McLennan County prosecutors’ desks, they found themselves stymied by heaps of paperwork, lying witnesses, and denials at every turn in their search for justice. But they persevered.

While many Baylor fans were celebrating a homecoming victory on the night of October 19, 2013, something horrible was happening to Rae (not her real name). She’d agreed to grab a bite to eat after a dance with Sam Ukwauchu, a football player who was sitting out a year after transferring from Boise State University. Instead of heading to a fast food place, Ukwuachu headed to his apartment—he told Rae he wanted her to see his new puppy. Rae, also a student athlete on scholarship, had met Ukwuachu in a class they shared and at Baylor’s center for student athletes. She even had a bible study group with Ukwuachu, and she had studied with him a couple of times at his apartment. Rae trusted Ukwuachu and she wasn’t in the least worried about a brief stop.
    While petting his puppy and sitting on his bed, Rae listened as Ukwuachu argued angrily with a friend from Boise who was in town to visit him. Ukwuachu was telling his friend to stay away from his apartment—he had something going on. Rae became nervous and wanted to leave. She began texting her friends asking someone to come get her. Nobody was responding.
    When Ukwuachu finally turned his attention to Rae, he was angry. He didn’t care that she had been clear about what kind of relationship she wanted with him (friendship only). He didn’t care that she clutched her dress to her body and fought him with all her strength. He didn’t care that her head violently hit his desk as forced himself on her. Ukwuachu felt entitled to take what he wanted. He ignored her screams and her sobs.
        As quickly as she could after the sexual assault, Rae retreated to a bathroom and locked herself in. She began furiously texting and calling friends to pick her up. (We later presented her texts in trial as excited utterances.) Almost immediately, Rae began blaming herself for what Ukwuachu had done. “I am so stupid,” she texted one friend. Finally a new friend checked her phone, drove Rae’s car to Ukwuachu’s apartment complex, and picked her up. Rae rushed out of the apartment and climbed in the backseat. When asked what had happened, Rae quietly whispered, “He raped me,” and insisted that she just wanted to go home and go to sleep.
    Rae awoke the next morning to a group of girlfriends pounding on her door—they were on a mission. One gal was Rae’s close friend from home who had come to Baylor with her. After a couple hours talking it over, her friends had convinced her that Ukwuachu shouldn’t get away with what he had done. The group helped Rae call her parents and drove her to the hospital for a rape exam. The hospital then contacted the Waco Police Department. Her friends stayed with her until her parents arrived from several hours away, and all of them gave their names to the patrol officer. When she finally saw her mom, Rae allowed herself to cry for the first time—something all of her friends tearfully remembered and recounted when they testified in court. Her parents insisted she come home, and she reluctantly agreed. Rae’s mom emailed Baylor’s Judicial Affairs department that Rae would be missing some school because of what happened. In response, the Judicial Affairs officer requested Rae provide an emailed statement about “the incident,” which she did.

Our involvement
Prosecutor Hilary LaBorde, in the Crimes Against Children unit at the time, was assigned Rae’s case several months later, after Rae’s athletic scholarship had been slashed and she’d had little choice but to leave Baylor. Rae had injured her knee just after she arrived at school, and she was unable to recover as her coaches expected, especially after she was coping with the sexual assault and keep up with her classes. While Rae had found significant support at Baylor’s counseling center through individual and group therapy with other rape survivors, the internal Baylor investigation had determined that her rape couldn’t be proved by “a preponderance of the evidence.” This devastating news was delivered via a joint email to Rae and Ukwuachu. The Waco Police Department Special Crimes detective had followed suit, later telling Hilary, “I just couldn’t decide who to believe.” No arrest was made.
    The case packet arrived at the McLennan County Criminal District Attorney’s Office with the single most important piece of evidence, the SANE results. The DNA had been processed, and it matched Ukwuachu (these results were available even before the detective transferred the case to our office). Hilary noted vaginal injuries consistent with penetrating trauma and Rae’s account of the brutal rape given mere hours after the crime. For a child abuse prosecutor used to delayed outcries and no medical evidence, it was a mountain of evidence.

Pushing past
the police report
Hilary began working on the case by requesting a meeting with Rae and her parents. After meeting with all three together and then separately, it was no longer just another sexual assault case with really good evidence. It was a horribly tragic, life-changing event for Rae and her parents. Rae had been living her dream—a college athlete on scholarship at her dream school—and then overnight, it morphed into a nightmare. Neither the school nor the police had believed that she’d been raped, and after a two-month investigation, Baylor had lifted restrictions on Ukwuachu, leaving him free to cross Rae’s path whenever he wanted. These random encounters sent her into a tailspin; hiding from him in stairwells and behind soda fountains and crying uncontrollably were common occurrences. Seeing her rapist all around campus and constantly feeling unsafe, Rae’s life had unraveled.
    Hilary questioned Rae and her parents not only about the crime and her trip to the hospital but also about her struggle to recover. They had been unable to tell her little brother, then a high school freshman, what had happened. (It was a secret they kept from him until the trial.) They were a close family now hiding a horrible secret. Rae slept with her mom for a week following her rape, unable to sleep alone. Rae had anxiety attacks if men approached her from behind and startled her—even the most trusted men in her life, her father and grandfather. Simply put, the girl who came home from Baylor was not the same one who’d left for college mere months earlier.
    Hilary continued working on the case by requesting all of Baylor’s investigative records and all records relating to Ukwuachu. She also requested Rae’s counseling records from the university. Rae had been through intensive post-traumatic stress disorder (PTSD) therapy with her counselor. It took several months and many emails to get all of these records. We learned that if there’s been a school investigation of allegations of sexual violence, prosecutors should start getting those records as quickly as possible. Federal privacy laws require all students mentioned in school records to be advised that their records may be released and allow those students to protest that release, and the process can take months to complete. Changes with Title IX’s requirements also meant many changes in how our office obtains student records. With every case, there seems to be a new and more arduous process to retrieve investigative and counseling records. Our advice is to start early and be persistent.
    Baylor’s investigative records—their volume and complexity—made it obvious that two prosecutors needed to work on Rae’s case to properly prepare for trial, so Robbie Moody, a felony court prosecutor, agreed to help as it became clear that a trial was in Rae’s future. Ukwuachu was not allowed to play football following his indictment, but he remained a student on full scholarship waiting to be cleared to play his remaining years of eligibility. A plea to any felony would kick him off the team, so we were headed to court.

Pushing past
Baylor’s red tape
In Baylor’s investigation, Ukwuachu had provided school officials with only one witness: Peni Tagive, another football player. Tagive told school officials that he had been in the apartment that evening and had heard Ukwuachu and a girl arrive. Tagive claimed that he heard no other sounds that evening and had slept until morning. His story contradicted Rae’s assertion that she had been screaming for help.  
    There was also one glaring problem with Tagive’s story:  He did not report to Baylor that he had been present that night for more than a month after Baylor notified Ukwuachu of the investigation. This delay never seemed to raise questions during Baylor’s in-house investigation, but it raised red flags for us.
    Robbie suspected that Tagive’s story could have substantial holes and knew he needed to talk to him as soon as possible. We scheduled a meeting between Tagive and an investigator at the McLennan County Sheriff’s Office so the interview could be visually recorded. At the appointed time, our investigator was present, but Peni Tagive was nowhere to be found. When we contacted him, he informed Robbie that he no longer wished to talk with us—the defendant told him not to come to the interview or talk with us anymore. Knowing that the defendant could be committing a new felony (witness tampering), Robbie obtained a grand jury subpoena.
    The grand jury is a tool that prosecutors often underutilize. It is a tool we rarely use in McLennan County, but we will use it with witnesses who refuse to talk to detectives during the initial investigation or when we suspect witness tampering, as in this case. In front of the grand jury, we confirmed that the defendant’s alibi was an outright lie that had been concocted long after the sexual assault and that Peni Tagive was nowhere near Ukwuachu’s apartment that night. He testified that the defendant had instructed him not to attend the grand jury proceedings (which might explain why it took a writ of attachment and some sheriff’s deputies to secure his testimony). We found out where he was and who he was with the evening of the rape and obtained his cell phone records and his friends’ cell phone numbers. (This made a huge difference at trial because cell phone data showed that Tagive was not asleep the night of the assault, as he claimed, because he was making phone calls long after he said he was in bed.) We also locked him into his story so that we could prepare his cross-examination well in advance of trial, effectively neutralizing him as a defense witness.

Pushing past
Boise State’s red tape
A fellow Baylor athlete had told Rae that the rumor at Boise State University (BSU) was that Ukwuachu had been dismissed from the football team due to violence against a female student. Rae had informed Baylor officials of this during their investigation, but the BSU registrar had told Baylor officials that Ukwuachu had left in good standing and was free to re-enroll. Robbie believed he must have committed some significant wrong in Idaho—it is certainly rare for a freshman All-American defensive end to be dismissed from a football team.
    When we first reached out to Boise State, we were informed that the school had no records of discipline problems for Ukwuachu. He had not been expelled or suspended from the university. But based on reports we had read in the Boise media, we knew that this was not the whole story.  
    Abdon Rodriguez, one of our investigators, contacted the athletic department at Boise State and was told that it would be worth his while to obtain a subpoena for Ukwuachu’s student records. This proved to be more difficult than normal because the subpoena had to come via interstate compact, but the Ada County (Idaho) Prosecutor’s Office helped us get those records. They contained a wealth of information. We learned though handwritten notes from athletic directors that the defendant had had a violent relationship with his then live-in girlfriend. His roommate, another football player, had been so scared of the defendant and his violent tendencies that he had called the police. Ukwuachu had been taken to a mental hospital more than once while a student at BSU; the school had also sent him to anger management classes to try to help him.
    Through this process we got the names of Ukwuachu’s roommate and ex-girlfriend, and they would prove to be extremely valuable at trial. The information in the records led us to contact the Boise Police Department (BPD). When we spoke with the custodian of records there, he repeatedly informed us that BPD had not responded to the roommate’s call to police, that there was no record of an interaction that night with Sam Ukwuachu, and there was no trip to a mental hospital. When we gave him the names of specific officers who were said to have been on scene (according to the Boise State records), we were informed that they were indeed employed by the Boise Police Department (BPD). When we asked for contact information for those officers, we were referred to the city attorney.
    We were thankful that the city attorney ended up being extremely helpful and began looking into the matter for us. He discovered that no reports or dispatch logs existed for the evening in question but that officers had preserved body microphone recordings from that night. (It has been difficult for us to understand why BPD was so unhelpful. They seemed to go to considerable lengths not to document Boise State students when it came to alcohol violations, but Ukwuachu’s conduct resulted in his mental commitment—yet there wasn’t any documentation to tell us who took him to the mental hospital. It is impossible with the information we have to speculate as to whether this was special treatment for an athlete or just for students in general.) Regardless, the city attorney quickly emailed copies of the recordings to us.
    The contents of the recordings were incredibly useful. In them, we heard the defendant’s roommate, Elliot Hoyte (an offensive lineman for Boise State and a rather large person) express that he was terrified of Ukwuachu discovering that he had called the police. In fact, Hoyte had called an assistant athletic director who called the police in fear of Hoyte’s safety. Officers on scene later advised Hoyte to move out and stay away from the defendant until the semester ended. We also heard the defendant screaming and crying while talking with the police. His statements that night helped us prepare for cross-examination in our trial. We learned that the defendant’s mood could turn on a dime. Finally, it confirmed to us what we had long suspected: The defendant has violent tendencies and becomes quite agitated when he is unable to get what he wants.  
    This whole process transpired over the period of several months. At every turn we hit another wall. People consistently did not want to cooperate or told us they remembered nothing.  Through constant pushing and refusing to accept these initial statements and claims, we began to finally uncover facts and witnesses giving us a clearer picture of Sam Ukwuachu. We now knew that he had a violent relationship with a former girlfriend and that his old roommate had been so scared of him that he had called police and moved out of the apartment.  

Keeping Rae’s parents informed
We cannot stress enough how invaluable it was to keep Rae’s parents in the loop—it was very much a joint effort. Her parents were going through their own mourning process as we prepared for trial. We believe they channeled some of this grief into helping us prepare.
    Hilary exchanged emails and texts with Rae’s mother frequently and spoke periodically to Rae’s dad on the phone (he much preferred to talk rather than email). Whenever any of us had news about the case, we communicated it to each other. As a group we were puzzled by Baylor’s Defensive Coordinator Phil Bennett announcing to the media that he expected Ukwuachu to return to the football team when his trial was still a couple of weeks away—it was a very disheartening comment, and we think it helped all involved to lean on each other as we felt sometimes like it was us against the world.
    Rae’s parents also acted as another set of eyes and ears. While the Boise State records detailed the violent relationship Ukwuachu had with his ex-girlfriend, she was identified only in handwritten notes as “Jackie.” We also knew from the records that Jackie, like Rae, was a student athlete. While we went through Boise State rosters looking for female athletes named Jackie, Rae’s mom found a Jacquelina Wonenberg, a track athlete, who, according to her Facebook page, was friends with Ukwuachu and had visited him in Waco (after he left Boise State, in the fall of 2013). Robbie got Jackie’s phone number through Elliot Hoyte, Ukwuachu’s one-time roommate in Boise.

The trial
In the summer of 2015, Ukwuachu pushed for a trial date so he could get back on the football field. By this time, Rae wanted no plea deals. In her opinion, everyone had let Ukwuachu get away with what he had done. She wanted no part of allowing that to continue, even if it meant a not-guilty verdict in court.
    All of our legwork leading up to the trial paid off. We had interviewed the one witness that Baylor had determined discredited Rae’s story, Peni Tagive, and found him completely unreliable and his story inconsistent with both Rae and Ukwuachu’s accounts of their relationship. After reading and re-reading Baylor’s investigative reports, we found several instances where what Rae had written in an email differed from how Baylor interpreted her words later in their reports. The school’s investigator into Rae’s rape was an academic who had long been involved in Judicial Affairs investigations at the university, though she had no investigative training. She didn’t record any of her interviews, she didn’t interview all available witnesses, and she didn’t consider any of the biases any of the witnesses may have had. After a lengthy gatekeeping hearing because the defense had designated this investigator as an expert witness, the defense withdrew its request to offer the investigator’s findings. In her last answer to the court, the investigator admitted: “I’m not an investigator.”
    Our persistence in acquiring Rae’s counseling records from Baylor also paid off in that we were able to offer her counselor’s diagnosis of PTSD and her subsequent therapy as expert testimony. A trial prep meeting with the counselor required no fewer than 40 emails to arrange with the university’s lawyers—and was worth every bit of effort. While Hilary and Robbie may have demanding trial schedules, it was obvious Baylor’s lawyers were hoping we would give up on calling the counselor if they made meeting with her difficult—the lawyers insisted they needed to be present for any trial prep meeting (even though we had the records)—so, whenever we were available, Baylor’s lawyers would be busy. Eventually we got our meeting (after Robbie discussed the stonewalling with a member of the firm) that a lawyer sat in on. Once we told her we had designated her as an expert, she felt she could speak freely with us about her opinions of Rae’s case. From their sessions through the trial, Rae’s counselor supported her 100 percent—she testified about all the details of the rape that Rae recounted in her therapy sessions.   
    Similarly, our persistence in subpoenaing and successfully getting three witnesses from Boise—Ukwuachu’s ex-girlfriend Jackie, a police officer, and an athletic director—proved worth all the headaches after the defendant insisted during cross-examination with Robbie that he “respected women” and would never have raped Rae. Our first witness in rebuttal was Jackie, who recounted how he’d strangled and struck her and destroyed her property during their relationship. The jury now knew the defendant not only was a liar, but he was also a violent abuser.
    Ukwuachu was found guilty and later sentenced to eight years with a recommendation of probation. Our judge sentenced Ukwuachu to 10 years on probation and 180 days up-front in jail (as a condition of his probation). Ukwuachu was released from jail on an appeal bond after he filed a notice of appeal. As of press time, we have received his appeal but not yet filed our response. Ukwuachu never played a down as a Baylor Bear.

Advice for other campus sexual assault cases
What is unique about prosecuting college rape cases is the number of statements survivors make during the investigative process. If a victim makes an immediate report, often many of her friends are involved in getting a SANE exam and calling police. Prosecutors must talk to all of those friends, but we should not assume that they are all still friends with the victim after months of waiting for a trial date. Also, be aware that some of those friends may be victims of sexual assault themselves and might resent the attention police and prosecutors are paying to the current victim. Make it a practice to ask all outcry-type witnesses about whether they themselves are sexual-assault survivors, and think critically about how that may bias their testimony.
    There is also a great number of statements to procure through university investigations. Baylor now has a Title IX office, so we can now request records from Athletics, Title IX, and Judicial Affairs in addition to academic records. Make sure to ask for handwritten notes as well as typed records, as we need to make sure that whatever is typed up matches what the investigator wrote down. We found instances where the two did not match, and it was key in showing the investigation was unreliable. Handwritten notes also may include a university employee’s personal opinion. In the Boise State records, the assistant athletic director had underlined twice that Ukwuachu’s relationship with Jackie was “not healthy”—one of our initial clues as to what Jackie might reveal about Ukwuachu.
    We also know that Title IX investigators have numerous conversations with survivors and suspects, as they are tasked not only with the investigation but also with providing accommodations to the survivor while the investigation is ongoing (things like changing class schedules, offering counseling, postponing tests, etc.). The interactions a crime victim has with a detective are much more formal and less frequent. Don’t ever assume because a university official has “documented” something as a statement from a survivor that it is accurate. These conversations can be very casual and documented long after the actual conversation occurred. Investigators may later refer to these notes as inconsistent statements and in fact not be able to testify to the survivor’s exact words, only how investigators interpreted them.

The victory for us was not the conviction for sexual assault. It was the opportunity to be a small part of Rae’s journey. We watched in awe as she testified not only in the State’s case, but also when the defense attorney called her back in his case. Rae stood at our courtroom’s white board, confidently drew the crime scene, and walked the defense attorney through all of Ukwuachu’s actions, again and again, backwards and forwards, until he gave up. Rae dominated the room. That day the defendant could not ignore her. He heard her words, and all he could do was bow his head in defeat.