A defense attorney during jury selection on Tuesday compared the trial to a baseball game, saying the prosecution had to "pitch a shutout" to prove beyond a reasonable doubt that Jake Syndergaard, a former junior at BVU, had committed sexual abuse against a fellow student amid Halloween partying last October.
"This is not a game," Assistant Buena Vista County Attorney Liz LaPole said in the prosecution's opening statement late Tuesday. "We're not going to keep score."
She said the State intends to prove that Syndergaard committed two sex acts by force or against the will of the female student.
The scenario - as attorneys on both sides agree: It was Halloween weekend of 2011, and Syndergaard, a defensive tackle, was playing against Coe in a home football contest on Saturday, while the female student was serving at the game as an athletic trainer. After the game, each student cleaned up, donned Halloween costumes, engaged in some drinking, and ended up taking a bus from BVU to the bars late in the evening. They apparently went to different bars; each returned to campus early in the morning, and wound up going to a suite in Briscoe Hall known for hosting after-hours celebration, where the two eventually engaged in intercourse briefly and the female student suffered an injury and bloodshed.
The prosecution claims that the female student received a text message inviting her to the "party room." When she arrived, she found only Syndergaard there, who began to make sexual advances toward her. The female student would testify that she told Syndergaard "no," and continued to give him "lots of reasons" why she did not want to have relations with him. LaPole said the defendant pulled her down into a chair, pulled her pants down, and had intercourse with her. When the female broke free and tried to get away, Syndergaard picked her up, put her on the floor, pinned her body down with his, and performed another sexual act, refusing to let her up until she had an orgasm, which she eventually faked in order to make him stop, according to LaPole.
The female was bleeding and there was blood "all over" at the scene when others arrived. LaPole said Syndergaard had admitted that the woman had said, "Stop, don't do this. I can't." And when a person says "no," under the law, the act is non-consensual. Guilty is the only verdict the evidence could possibly allow, LaPole claimed.
The defense saw it differently.
Sydergaard is a "nice young man" who grew up in Schaller and went to Alta High School before going on to study and play football in college, defense attorney Ned Bjornstad said.
After transferring to BVU, he met the female, and they began to engage in electronic messages, and saw each other nearly daily at football practices and games. After the game in question, a text message was shared between the two, but they did not plan to meet. The female dressed up as a hippie with a blouse, skirt and tights, and Syndergaard dressed as Bam Bam Flintstone in a tunic over athletic shorts. At about 2:20 a.m. on Sunday, they returned from going to separate bars. Jake was at the Briscoe suite where some of his friends lived, awaiting the arrival of other students, and the female called him and asked to be let in, the defense attorney said. After some small talk, the female led the defendant into a bedroom of one of the resident students who had not yet arrived; Jake sat in a chair and the female straddled him, and soon they were having intercourse for a short time, according to Bjornstad. The woman told him to stop - but not because she didn't want to have sex, but because she was not on birth control and feared pregnancy, he claimed. At that point Syndergaard pulled her "playfully" to the floor and performed another act on her, he said, adding that the girl had kissed him repeatedly, which he took as a signal to go ahead, the defense attorney told the jury. Ultimately she told him to stop and he did, just as others started to arrive, he said. A resident of the suite who had been in another closed bedroom said he heard no commotion or screaming. The girl found she was bleeding and was taken to the medical center.
Syndergaard's attorney said it was not until the next day that the medical center reported the incident to police. He said an officer met with the female, secured some taped statements and obtained an incomplete medical record. Syndergaard willingly gave a statement when contacted, Bjornstad said. If it wasn't for the injury, there would have been no report or trial, he claimed. He said it will be up to the jury to determine if the sex was by consent, and said it would be impossible for the State to prove there was no consent. During his statement, he referred to the size of the girl, saying she was "not diminutive." She is also a standout athlete at BVU. However, football records list Syndergaard's size as being five inches taller and 65 pounds heaver than what Bjornstad cited as the female's size.
Syndergaard was originally charged with Sexual Abuse First Degree, carrying a potential life imprisonment sentence. Shortly before the trial, the State reduced the charge to Third Degree, with a maximum ten year sentence, as prosecutors were not certain they could prove permanent physical damage to the woman.
Bjornstad, former Dickinson County Attorney, is teamed with Storm Lake attorney John Murray for the defense; with prosecution by two young assistants who both joined the county attorney's office in 2011 - LaPole and Kyoko Balk. County Attorney David Patton will not take an active in-courtroom role in the prosecution, they said.
Jury selection consumed most of the day Tuesday, with 73 people called, eventually whittled down to a pool of 24. From there each side struck six names to get down to a final jury of 12 - six men and six women.
Many of those originally selected were excused for a variety of excuses - family illnesses, vacation time, a scheduled job interview, inability to read English. Several of the prospective jurors know or work with the defendant, police or the attorneys. Two who were not among final selections were employed by the university, and at least five admitted that they had some personal or family involvement with sexual abuse incidents. Some were excused after requesting private conferences with the judge in his chambers. Jurors were even questioned about watching "CSI" type crime TV shows and what kind of reactions such shows might cause them to expect.
As the process drug on for several hours, one prospective juror passed time knitting. Another who was not selected read a paperback. They were asked their opinions about alcohol use and whether they would be comfortable if asked about their own sex lives.
Sydergaard appeared calm and collected throughout the opening days of his trial, hands clasps in front of him, making no comment or reaction to the statements, but occasionally leaning in to his attorneys for a brief conference or jotting notes on a pad.
The attorneys spoke of plans to call BVU students, security and police officers, doctors and nurses, and classmates and a coach from Syndergaard's time at Alta High School among a lengthy list of witnesses, as the testimony is expected to run into early next week. A doctor involved with the female's injury after the incident is expected to testify on Monday.
Syndergaard will testify on his own behalf, although he is not required to, his attorney said.
Judge Patrick Carr, entering his 17th year on the bench, shared a personal word with the jurors before the lawyers got their turn.
"One of the most valuable things I have learned - and I knew this when I was an attorney but it has really been pounded home in my time as a judge - is how important it is not to make an opinion until you have heard all of the facts."
The jury was warned to discuss the case with no one, to refrain from reading or listening to any news of it until the verdict is in, and not to "Google" any of the people or evidence in the case looking for information from outside the courtroom.
The prosecution began its case at 9 a.m., immediately calling the 21-year-old woman alleged to be the victim in the incident, and she spent nearly four hours on the stand. She remained composed throughout, leaving the courtroom afterward.
She revealed that one of her friends had a sexual relationship with Syndergaard, and said that she was at times asked by the friend to text him to find out where they could meet, without Syndergaard's girlfriend finding out.
On the night of Oct 29, the female student said she had consumed two water-bottle size drinks of vodka and lemonade while socializing in the dormitories. She admitted feeling minor effects of the alcohol but said she had never passed out or become sick, and said that when she saw Sydergaard briefly during the evening, he appeared intoxicated and was speaking loudly. She said she rode the "drunk bus" to Malarkys, and had 1 1/2 run and cola drinks there before returning to her room sometime after 1 a.m. While there she received a text message from Syndergaard inviting her to the Briscoe Hall suite well known for hosting early-morning "afterparties." She texted another football players who she said she had a crush on, to see if he would accompany her to the party, but he did not respond that night. She asked a female friend, but that student was headed for bed. The woman arrived at the hall alone, and called Syndergaard to let her in. She had expected a large group of people, and was surprised to find the suite dark and empty. She said Syndergaard suggested she go into one of the bedrooms to look for a DVD movie they could watch until others arrived, but then he followed her into the dark bedroom and grabbed her by the waist, spinning her around and forcibly kissing her.
She said she tried to push him away, but he was too strong. She said she told him that she "couldn't do this" and reminded him that he had a girlfriend and a relationship on the side with the woman's friend. She said he responded that he didn't care about the girlfriend and that the other female scared him. She said she tried to tell him she would get into trouble, as trainers are not supposed to have sexual relationships with athletes they work with, but he replied that no one would find out. She testified that she kept trying to escape as he continued to try to kiss her, and eventually he sat down into a nearby chair, causing her to fall onto the chair as well. She said she pleaded for him to let her go, but he continued to force kisses on her and try to force her legs around him. At one point she was able to stand up, and Syndergaard pulled her tights partway down and pulled her down on top of him for intercourse. She continued to say no and that she did not want to have sex with him, and that she was not on birth control, and finally he released her and told her to just leave if she was going to say no to him, she testified. She pulled up her tights and went for the door, but before she could get through it he reached her from behind, grabbed her arm and pulled her back, making her fall to the floor. There he pinned her upper body with his, pulled her tights down again and forced another sexual act on her, although she continued to plead for him to stop, she said.
When questioned about why she didn't try to fight him or scream, she said she was afraid that he would hit her. With her arms pinned, she said she tried kissing him to distract him from the sex act, but that it only worked for a short time until he continued, although she told him he was hurting her.
When he got off her, she said, she found she was bleeding and in pain. She went into the bathroom and locked the door and tried to clean up, but the bleeding was so bad the floor was soon wet with her blood. She crawled into the shower and sat crying, she said, refusing to let Syndergaard in.
Eventually one of the suite residents arrived, and she opened the bathroom door for him, and was comforted by him while Syndergaard remained in the other room. A residence hall advisor was called in and convinced the woman that she had to go to the hospital.
The female student said she told a doctor at the hospital that she had been raped, but didn't want to anyone to find out, because she had seen previous cases where vicious rumors were spread around campus about women who had reported incidents. She turned down a rape kit at the medical center, saying a doctor at the time told her she did not need to take the testing. No one at the medical center offered to call police, she said, and she did not want to file charges, She was given medication that made her very tired, was sent back to her dorm room where she slept for a time, and was called back to BVRMC later that morning when a doctor arrived to do surgery on her injury, she said.
Under cross examination by the defense, Bjornstad repeatedly questioned the woman about specific times that she was in various locations, whether lights were on in various rooms of the suite, and even where she had eaten supper that night last October, seeking to raise questions about her memory. In many of these cases that did not involve the incident itself, she responded that she didn't know, later clarifying that it was not because of alcohol, but because it was too long ago.
Numerous questions about the amount of alcohol she had consumed and its effects were asked.
The defense noted that it was the woman who placed a call to Sydergaard asking to be let into the residence hall, and that she could have called residents of the dorm instead.
She was also repeatedly questioned about specific responses she had made to questions by the defense in a pretrial meeting last month.
"In fact, didn't the two of you begin kissing in the lounge" before going into the bedroom? she was asked, replying firmly, "No." The attorney then tried to get her to admit that the sex was consensual, and again she replied with no hesitation, "No."
The defense sought to make the case that Syndergaard had "playfully" pulled the female onto the floor, but the woman denied having described the incident that way, and said the action was violent.
Bjornstad also claimed that at one point after the incident, the female student was known to be laughing rather than crying. He also questioned her allegation that she kissed Syndergaard to try to distract him from a sex act, wondering how such an action would send him the message that she wanted him to stop. Bjornstad also questioned why she did not use a cell phone that she had on her to call police when she locked herself in the bathroom.
In later questioning, the woman said part of the reason she did not initially want to file charges was that she did not want the responsibility for making the football team she worked with short-handed, and that she had thought Syndergaard was "a nice guy when he's not drinking."
Wednesday afternoon, a BVU security officer was called to the stand. He said he was called to the room by a friend of the woman's who happened to know him, and found Syndergaard sitting on a loft bed with glazed eyes, appearing intoxicated, wide-eyed and glancing around the room while be rubbed marks on his chest and shoulder. Clothing and beer cans/drink cups were scattered around the room and there was a strong smell of alcohol, he said. While he was there, a resident of the suite kicked away a handkerchief, revealing that it has been covering up a softball-sized bloodstain on the carpet. The young woman eventually emerged from the bathroom with a towel tied around her waist, and looked as if she had been crying, he said. The officer took the female student and two others who accompanied her to the hospital and brought the woman inside in a wheelchair he found near the entry.