On the second day of the Donald Cuba sexual assault trial, in which Cuba is accused of raping a fellow SMU student, a parade of witnesses relayed an oft-confusing tale of a drunken evening at a freshman dorm. Students described using fake IDs, drinking alcohol from bottles, and passing out.
Cuba, 21, is accused of raping a fellow SMU student (who is being referred to as Jan Doe) on February 10, 2012. In her testimony on May 20, Doe said that Cuba forced her down onto a dorm bed and penetrated her against her will. The defense has tried to undermine her credibility, questioning her repeatedly about the placement of her clothes and hands during the alleged assault.
“In each and every case, I have tried to speak the truth,” Doe said. “But my memory is not infallible, just as no one's is.”
Cuba has not taken the stand in his own defense. Although no one who testified on May 21 witnessed any untoward or even overly amorous interaction between Cuba and Doe, several students said they saw Doe in compromising situations with a student named Paul Eager on the night in question.
A text message exchange between SMU students Peyton Hall and Erik Buchel, who lived in the same dorm as Doe in 2012, relayed information about Doe being intoxicated and kissing Eager in Hall’s room while Hall tried to sleep.
“Come break Paul and [Jan Doe] up now. They’re too drunk to know I’m here,” read a February 9, 2012 text from Hall to Buchel.
Doe’s attorney, Cresta Garland, suggested that a text could be falsified using an app called Spoof SMS. However, upon examining Buchel’s phone, Garland did not find anything questionable about his text with Hall.
The prosecution called two expert witnesses to testify about trauma and sexual assault. Dr. Cathey Soutter, the director of counseling at SMU, treated Doe just days after the alleged incident.
Outside the presence of the jury, Soutter said she believed Doe had been truthful and was a victim of sexual assault. Judge Sally Hawk instructed Soutter to only discuss facts in the case and not to speak about credibility issues. Shea Alexander, director of the Dallas Area Rape Crisis Center, testified about the wide variety of responses to sexual trauma and perceived danger.
“It takes a lot of courage and stamina for a victim to come forward,” Alexander said. “The majority of people we interact with do not report the sexual assault, and it’s pretty common to have a delayed response.”
Doe waited three days to report the crime to her resident advisor at SMU and even longer to tell the police. She was seen at a party the night after the alleged assault.
“Often times [victims] try to be normal and try to get out,” Alexander said, adding that Doe’s behavior did not strike her as odd.
Most of the defense witnesses have a current or prior affiliation with Cuba’s fraternity, Lambda Chi Alpha. Rich Burkhardt, 20, testified that he was biased in the case against Cuba, who is his “big brother” in the fraternity.
The alleged rape occurred on Burkhardt’s bed while he was out of the room. Burkhardt testified that he stripped the sheets off the bed and asked Doe and other girls to wash them for him. No one who handled the sheets recalled seeing blood or any other discharge before or after they were washed in the dorm laundry room.
Doe has previously testified that she found blood in her underwear, on her shorts and on her T-shirt. But she washed them before anyone else — including police — were able to examine them.
A few unexpected comments from the student witnesses broke the seriousness of the trial. When Burkhardt’s roommate Heano Kim took the stand, he said that it wasn’t unusual to see Burkhardt’s bed in disarray.
“He doesn’t really make his bed very often,” Kim said, eliciting laughter from the jury.
As Buchel exited the witness stand, he turned toward the judge said, “Quick question: Do you guys validate parking?” Buchel asked.
The courtroom burst into laugher, and Judge Sally Hawk said, “No, but you just made our day. I’ll tell you that.”
The trial resumes Wednesday morning.
The defense called nine SMU students as witnesses. Many are current or former members of the defendant's fraternity, Lambda Chi Alpha.
