The Wyoming Supreme Court has overturned the first-degree sexual assault conviction of Travis Bogard, who was sentenced to 5-10 years imprisonment in 2018 after a trial in Albany County’s district court the previous year.
In ordering a new trial on a 4-1 decision, the Supreme Court justices decided that “prosecutorial misconduct” committed by the Albany County Attorney’s Office deprived the defendant of a fair trial.
The high court’s decision said prosecutors repeatedly made characterizations of the crime that were not supported by evidence.
After the decision was issued Wednesday morning, Albany County Attorney Peggy Trent told the Laramie Boomerang she’s informed the victim of the decision.
“After that conversation, we’ll make an assessment in the next week or two (on whether to retry Bogard),” Trent said.
If Trent moves forward with prosecution, it will be Bogard’s third trial. A first trial ended in a hung jury.
On Wednesday, Laramie defense attorney Tom Fleener filed a motion to have Bogard released pending a new trial.
Bogard is currently serving his sentence at the Wyoming Honor Farm, the state’s prison farm in Riverton. Fleener said he’s hoping Bogard will be brought to Albany County in the coming days for a bond hearing.
“Hopefully we can get Travis out so he can spend time with his family, and then we’ll start working with the county attorney on what the next steps are,” he said.
Bogard was accused of raping a woman in the Ranger Bar’s bathroom in 2016. Before alleged rape, the two had been publicly kissing consensually, and Bogard claimed he ended the sexual encounter as soon as he realized consent had been withdrawn.
In the Wednesday decision, the Supreme Court rebuked statements made during 2017’s closing arguments by prosecutor Cody Jerabek, who no longer works in the Albany County Attorney’s Office.
“This was not consent,” Jerabek said during the trial. “This was not silence. (The victim) spoke in that bathroom. (The victim) cried in that bathroom. (The victim) cried eight minutes after she left that bathroom. (The victim) cried 25 minutes after she (left) that bathroom. (The victim) cried for three weeks after that bathroom. (The victim) has now cried for a year after leaving that bathroom.”
Jerabek also repeatedly claimed that the victim was “sobbing hysterically” during the assault, including as Bogard “violently penetrated her vagina until it bled.”
Not only had the victim not testified that she cried during the assault, Justice Lynne Boomgaarden agreed with defense counsel in the majority opinion that Jerabek’s statements constituted illegal “impact evidence,” which constitutes using the emotional impact of a crime as evidence of the defendant’s guilt.
The Supreme Court said that impact evidence should only be used to argue the credibility of the victim.
The Supreme Court also rebuked Jerabek for using profanity in his closing argument.
When walking the jury through evidence from a surveillance video, Jerabek said that at 2:16 a.m., the victim was “led to the after party — not led to go hook up and get f—-ed in a bathroom.”
“We note that courts generally find it permissible for a prosecutor to repeat profanity in argument when the profanity is part of the evidence presented at trial,” Boomgaarden wrote. “Otherwise, courts condemn counsel’s use of profanity in the courtroom. … The prosecutor’s use of profanity was entirely unnecessary to his presentation of the timeline. Instead, it was an obvious attempt to invoke feelings of anger, indignation, and outrage in the jury about what Mr. Bogard allegedly did to (the victim) in the bathroom.”
The Supreme Court also faulted the prosecution for the way it handled character evidence regarding Bogard.
A woman, with whom Bogard had previously had sex with, was called to testify as a witness because she saw Bogard at the Ranger Bar only minutes before the alleged rape occurred in the bathroom.
Prosecutors originally sought to have that woman — identified as Ms. K — in court documents testify as a character witness.
Ms. K had told investigators that she and Bogard met on Tinder and that she stopped seeing him after an unpleasant sexual encounter.
While prosecutors were barred from bringing that evidence into court, Ms. K was still allowed to testify, and only said she stopped seeing Bogard after a “negative experience.”
In what the Supreme Court called a “rapid succession” form of question, prosecutors repeating alluded to the “negative experience” quote in questioning Ms. K.
“Though the prosecutor did not elicit testimony about precisely what the ‘negative experience’ entailed, the context of Ms. K’s testimony certainly left an impression that Mr. Bogard had done something unsavory to Ms. K,” Boomgaarden wrote for the majority. “In this context, we have little trouble concluding that the prosecutor’s repeated comments regarding the ‘negative experience’ could only have referred to the evidence the district court ruled was inadmissible and were made for the purpose of leaving the jury with the impression that the ‘negative experience’ consisted of an unpleasant sexual encounter between Mr. Bogard and Ms. K. By alluding to inadmissible evidence in his questioning of Ms. K, the prosecutor committed misconduct.”
Trent said she doesn’t fault the Supreme Court for making the decision they did.
“I believe that prosecutors are held to a higher standard,” she said. “Unfortunately, my deputy, being an a young attorney, made some comments he shouldn’t have. We want to make sure that a defendant gets a fair trial. … I hold my attorneys accountable, and if they’re not accountable, they can no longer work in my office.”
While the bulk of the justice’s concern about prosecutorial misconduct revolve around Jerabek’s closing statement, the justices did take issue with a few comments made during the trial by Trent herself.
During the final rebuttal, Trent told the jury that “you even heard (the victim) at the beginning of her testimony, the effects of this, how she’s dropped out of school.”
Boomgaarden said Trent was guilty of arguing “facts not in evidence.”
“(The victim) never testified that she dropped out of school as a result of the incident at the Ranger bar,” Boomgaarden said. “Rather, she testified that she was no longer attending the University of Wyoming or living in Laramie.”
While the victim didn’t directly testify in court she left UW because of the incident, Trent said she felt her assertion was supported by the evidence.
In fact, the victim did later state at sentencing that her rape did lead to her dropping out from the university.
But when coupled with Jerabek’s comments, Trent said she understands why the justices felt her characterization was unfair.
“I’m held to a higher standard and I respect that,” she said.
Chief Justice Michael Davis, who wrote a concurring opinion, said the Ms. K should have never been allowed to testify.
“I can see no relevance to Mr. Bogard’s dating history with Ms. K to a charge of first degree sexual assault of another woman,” he said. “At most, it tended to show that he was not in her estimation a great guy to go out with, and that ruling provided an opportunity for the State to suggest some kind of sexual impropriety.”
Davis also noted that the victim’s written statement to law enforcement was improperly allowed to go into the jury room during deliberations.
Trent said she feels her own comments, when not coupled with Jerabek’s, are “benign.”
Ultimately, the Supreme Court determined that the transgressions of prosecutors deprived Bogard of a fair trial because the physical evidence presented by prosecutors was not that strong, offering “little in the way of mitigating any prejudice resulting from prosecutorial misconduct.”
“We agree with Mr. Bogard that this is a ‘she said, he said’ sexual assault case, with the State primarily relying on the credibility of SK’s testimony to prove lack of consent,” Boomgaarden said.
One justice, Keith Kautz, wrote a dissenting opinion Wednesday, arguing that Trent’s office had not committed prosecutorial misconduct.
“I agree with only one small portion of the majority’s opinion,” Kautz wrote. “The prosecutor’s use of foul language during closing argument was unnecessary and inappropriate.”
However, he said it was unlikely that Jerabek’s language would have influenced the jury against Bogard.
“In fact, the prosecutor’s poor word choice likely helped Mr. Bogard, as I imagine at least some of the jurors were as offended by it as we are,” Kautz wrote. “Perhaps that is why defense counsel did not object. Moreover, the misconduct consists of a single-word in a lengthy closing argument during a five-day trial. The trial court could have, and in my opinion should have, admonished the prosecutor for his lack of decorum.”
Because Bogard’s original defense attorney had not challenged Jerabek’s assertions at the time of trial, nor did the attorney seek a mistrial, Kautz said the Supreme Court should have been more deferential in upholding the conviction.
Kautz also said that, while the victim didn’t testify she was sobbing during the assault, he also thinks that might have been the case, noting the trial’s transcript indicates she was emotional while testifying at trial.
“If she was crying during any or all of this testimony, then perhaps it was a reasonable inference from her testimony she was sobbing during the assault,” Kautz said. “Or, perhaps the prosecutor was merely being metaphorical. Perhaps that is the reason Mr. Bogard did not object to these statements. We simply cannot know from a cold record.”
In the Bogard’s first trial, which ended in a hung jury, the victim had testified that after the defendant left the bathroom, “she sat in the corner and cried.”
“The prosecutor may have been unintentionally confusing the two trials, which would not be surprising given the first trial occurred less than four months earlier and Mr. Bogard used parts of (the victims)’s testimony from the first trial during the second trial for impeachment purposes,” Kautz wrote. “Moreover, the evidence showed (the victim) to be sobbing hysterically on the 911 call, which occurred approximately eight minutes after she left the bathroom. She also appears to have been crying while talking to Officer McAlmond on the street approximately 20-25 minutes after she left the Ranger bar.”
A nurse who conducted the victim’s rape kit also testified the victim was crying “pretty much the entire time during the examination.”
Bogard was charged with first-degree sexual assault after the incident at the Ranger Bar in October 2016.
The victim arrived at the Ranger Bar at around 2 a.m. on the Friday night before Halloween. She was introduced to Bogard and they immediately hit it off. They talked, flirted, took a shot of tequila together, and consensually kissed.
It is undisputed that around 2:15 a.m., the victim willingly followed Bogard down a lighted hallway that was covered in trash bags and Halloween decorations and then down another hallway that was unlit.
He led her by the hand into a bathroom and she willingly followed him inside. They were consensually kissing as they entered.
The victim’s and Bogard’s accounts of what happened in the bathroom between approximately 2:15 and 2:30 a.m. significantly differ. By the victim’s account, she became concerned and wanted to leave, but Bogard picked her up by the waist and moved her over to the window. She testified that she tried to apply a pressure point to his shoulder and tried to get out of the bathroom, using her foot to try to twist open the doorknob.
The victim said Bogard pulled off her clothes and tried to penetrate her from behind. When he did so, she flinched and kept telling him that she wanted to go back to her friends, she testified. After a period in which Bogard repeatedly tried to penetrate the victim, and her, in response, said she wanted to leave, he yelled and laughed, and left, according to the victim’s testimony
Bogard conversely testified that he immediately ended the encounter when he realized consent had been withdrawn. He said that, after the first attempted penetration, she “pulled away just as violently” and he considered that his rejection. He pulled up his clothing, told her to take her time, and left the bathroom.
Then Bogard went outside and forced himself to vomit because he had been mixing alcohol that night and felt sick.
The victim later left the bar at approximately 2:32 a.m., located her friends, told them that she had just been raped, and one of them called 911. The victim then talked to a 911 operator and went to the hospital, where a rape kit was conducted, which revealed numerous abrasions and a laceration one inch into her vagina. After Bogard left the bar, he returned to Cheyenne, where he was eventually arrested.
At the time Bogard was convicted in 2017, Trent and others in Laramie described the conviction as a watershed movement for sexual assault justice.
“It’s a victory for Albany County, I can tell you that,” SAFE Project Executive Director Faryn Babbitt said at the time. “In five years, I’ve probably worked with 125-150 victims of sexual assault and this is the first successful prosecution that we’ve seen since I’ve been at SAFE Project.”
SAFE Project is a victim advocacy organization geared toward helping survivors of gender-based violence.
The conviction was also thought to be particularly rare given the fact that the majority of the evidence was “he-said-she-said” recollections.
Originally from Washington, Bogard came to Laramie in 2010 on a full-ride scholarship to play for the University of Wyoming’s football team.
While nagging injuries made him a non-factor on the football field, Bogard earned degrees in accounting and finance and worked as a CPA in Cheyenne before he was imprisoned.
After the incident, the victim suffered from and received treatment for post-traumatic stress disorder.