OT “Who Do You Think They’re Going to Believe?”

By Steve Duin

Content warning: This story contains a detailed allegation of rape.

On a June afternoon in 2017, Breaunna McCarthy received an urgent call to come to her parents' Milwaukie home.



McCarthy, 21, arrived, her 6-month-old son in tow, to find her younger sister scrunched at one end of the 8-foot chocolate brown couch, knees to her chest, in the family living room.

Breaunna eased down at the other end of the couch. Everyone was strangely quiet. "Can someone say anything?" Breaunna asked, before turning to her 16-year-old sister. "Are you pregnant?"

No, she wasn't. But over the past year, her sister said, crying softly and staring at her hands in her lap, she'd been forced to have sex several times by Breaunna's 22-year-old boyfriend, Thomas Kyle Shaver.

The first time, she added, was on the very couch where she now huddled beneath a blue blanket.

Breaunna's reaction was spontaneous and heated, say Mark and Mona McCarthy, the girls' parents.

"I'm gonna kill the fucker," she said.

Leaving the baby with her parents, she raced back to her Tigard apartment to confront her boyfriend.

As too many weary prosecutors will tell you, this is not an uncommon story: the sex crime that rips a family apart.

But this one would prove especially divisive. That June day would be the last time the McCarthy sisters saw one another for 15 months, until September 2018, when Kyle Shaver went on trial in Clackamas County, charged with more than 10 counts of rape, sodomy and sexual abuse.



For the jury, the timing of the trial was curious: It unfolded during the volatile hearings over the Supreme Court nomination of Brett Kavanaugh.

On Capitol Hill, the riveting testimony of Christine Blasey Ford, and the angry rebuttal of Kavanaugh, highlighted the nation's polarizing debate over truth, memory and victimhood when women accuse men of sex abuse. You might have thought Ford spoke for every victim whose story is met with disbelief and derision—or that Kavanaugh carried the burden of every man falsely accused.

In Clackamas County, jurors had to pass judgment in an even more contentious case. Shaver went on trial because the sister of his live-in girlfriend said he sexually assaulted her when she was 15. He said she made everything up.



Milwaukie police and county prosecutors believed her. In a strange twist, her older sister did not. For all her outrage at the family meeting in June 2017, Breaunna McCarthy decided Kyle Shaver was innocent, and severed all ties with her parents and sister.

In the bright lights of the Senate Judiciary Committee hearing, and a cramped jury box on the second floor of an Oregon City courthouse, the same questions divided the room:



Whom do you believe? What do we require, beyond a woman's oath and recalled memory, in the way of corroborating evidence?

Who's really on trial—the accused or the accuser? Did the Kavanaugh hearings betray just how much age and gender weigh on our perception of crime and punishment in sexual-assault cases?

And how can we expect jurors to render judgment and justice when the same intense and devastating story pushed even family members to strikingly different conclusions?

As Max Schuetze, one of the jurors, said a month after the Shaver trial ended: "The decision we came to didn't make much sense. That goes to show how difficult it was for us to come to any kind of conclusion."

In the spring of 2016, Ellie McCarthy was 15 and a sophomore at Clackamas Middle College, a high school in Happy Valley. (Because she was a minor when the alleged crimes occurred, Willamette Week is not using her real first name.)

Ellie was gregarious, social and competitive. She was on the dance team at Milwaukie High. She had a fourth-degree black belt. She dreamed of joining the Army, her mother says, and thought she might one day go to medical school and become an obstetrician-gynecologist.

She also admired her older sister. Breaunna, then 21, was living at the time with Shaver in a small Tigard apartment. They met at a party when Breaunna was attending Oregon State University.

A former linebacker for Willamette University, the 6-foot Shaver worked as a legal assistant at Carr Butterfield, a Lake Oswego law firm. He'd previously interned in the legislative office of state Rep. Knute Buehler (R-Bend), before Buehler ran for governor in 2018.

Breaunna and Kyle often hung out at her parents' tidy 1,160-square-foot home in Milwaukie. As Shaver's parents were divorced, the McCarthys filled in as his close-knit family, even hosting his college graduation party. The dad, Mark, worked at Fisherman's Marine & Outdoor in Oregon City, Mona for Multnomah County Aging, Disability and Veteran Services.

"Kyle became part of the family immediately," Mona says. "He was at our house even at times when my daughter [Breaunna] wasn't there. He just melded right in. I liked him. I loved him. I saw a future for our family with him."

Everyone agrees Kyle and young Ellie got along just fine. They'd goof around playing Grand Theft Auto on his Xbox. He helped her with homework. Now and then, she said during the trial, he'd slip her a few pills or some weed.

But everything changed, Ellie said, on the night of April 28, 2016. During an alcohol-fueled family party in Milwaukie, Breaunna pulled Ellie aside and told her she was pregnant. The house was filled with partiers that night, and Ellie surrendered her bedroom to two of them.

According to trial testimony, she was curled up on that living room couch, watching TV and Snapchatting, when Kyle lumbered out in his boxers at 2 am, claiming he'd been kicked out of Breaunna's bed for snoring.

Ellie testified alarms didn't sound when Kyle collapsed at the far end of the couch, her makeshift bed for the night. Nor did she panic when he stretched out, "putting his feet under my butt. I do that, too, sometimes, when my feet get cold."

Then, however, Ellie says Kyle put a pillow in his lap and said, "Put your head here." He was persistent. Ellie could smell the alcohol as he began fondling her breasts. And suddenly, she later testified, Kyle's boxers were at his ankles and his hand was pushing her head toward his crotch.

"I was, like, 'No!'" Ellie says. "He was like, 'C'mon, c'mon, it's fine. They're sleeping."

Her mother. His pregnant girlfriend.

"I ended up performing oral sex on him. Yes, his penis inside my mouth," Ellie would eventually testify in Courtroom 6, repeating the explicit language demanded by prosecutor Scott Healy.

That wasn't a sufficiently happy ending for Shaver. After a trip to the bathroom, he returned to the couch, Ellie says, pulled down her shorts, and they had intercourse.

She was 15 and a virgin. When Healy, the senior deputy DA who prosecutes sex crimes in Clackamas County, asked why she didn't flee the room, Ellie said, "There wasn't anywhere to go."

Why didn't she scream for help? "They had just told me [Breaunna] was pregnant. It was now a family situation. I knew Breaunna would have left Kyle right then and there."

The last thing Ellie remembers Kyle saying that night? "Are you going to tell anyone?"

In the morning, he sat beside her when her mother made breakfast. "I honestly didn't know if he knew what happened last night, because he was drunk," Ellie testified.

The confusion didn't last. When Kyle and Breaunna crashed at the McCarthy house that summer and fall, Shaver was forever volunteering to run out for doughnuts or knickknacks, just so long as Ellie rode shotgun. "A lot of times when I didn't want to go, it would be my mom saying he doesn't know his way around Milwaukie, or 'You have to be more helpful,'" Ellie says. "I'd be guilt-tripped into running errands with Kyle."

She already felt guilty, caught up in something beyond her control. In early summer, Ellie testified, Shaver volunteered to make a 10 am doughnut run to the Krispy Kreme on Southeast 82nd Avenue. She went begrudgingly, and when Kyle pulled into the parking lot, behind the dumpster, then ordered her to strip off her leggings and climb into the back seat, she wasn't surprised.

"Because if he did it once," Ellie said, "he could obviously do it again."

Over the course of 14 months, Ellie estimates they had sex 20 to 30 times. He was sexually abusing her at 15, and routinely badgering her for sex when she turned 16. On the dash to Panda Express. In any parking lot where Shaver could maneuver Mona's SUV into the shadows and position Ellie to best advantage. They were often barely out of sight of her parents' home, Ellie testified, racing down Southeast Railroad Avenue, when Shaver was begging her to release her seat belt and go down on him.

"Although it wasn't a normal thing to do, it became the normal thing for me and for Kyle," Ellie said.

Susan Anderson-Kruger, a retired schoolteacher and one of two alternate jurors, found Ellie's testimony absolutely persuasive: "She's a teenager, trying to negotiate her way to adulthood. What do you know at 15? He put her in such a compromised position that she didn't know how to divest herself of him. And then it began to unravel. She began to exhibit sexual behavior consistent with someone who has been abused."

No one in the family questioned why Kyle and Ellie were often gone so long on those errands. "He groomed Ellie. He groomed Breaunna," Mona McCarthy says. She further argues he deceitfully gained her trust: "He groomed me, a grown woman."

Shaver's audacity knew no boundaries, Ellie's testimony alleged. On the night of April 2, 2017, almost a year after the first incident, Kyle and Breaunna arrived at the McCarthys' Milwaukie house after midnight, Ellie said. Seriously hungover, Breaunna was sleeping on the infamous couch; Kyle was in the spare bedroom with the baby.

At 2 am, he began Snapchatting Ellie, who was in her bedroom. "He kept pushing it and pushing it," Ellie testified. "He was trying to get me to come into the room. I was not in the mood to have sex with Kyle."

Frustrated by his badgering, Ellie finally threatened Shaver to tell everyone about their relationship.

"That'd be worse for you than for me," Shaver fired back. "No one believes anything you say. I would deny it and deny it…and then you'd be the one who ruined everything."

Ellie preserved that Snapchat exchange. Healy set the dialogue on two large poster boards in the courtroom, and called it "corroborating evidence" and "the smoking gun."



Ellie did discuss Kyle with her best friend, Alexis Gallamore. "We talked about it a lot. It was something going on in her life," Gallamore testified at trial. Ellie also opened up to her boyfriend, Avery Findley, then a Lakeridge High School junior.

Ellie first told Findley about Kyle in August 2016. "She was crying," Findley testified. "She told me the defendant in this case raped her. She felt forced. That's how she described it to me."

She also swore him to secrecy. She claimed it was a one-time thing. But in June 2017, during finals week, Ellie called him at lunch and, Findley said, "dropped a couple bombs." She admitted she had an ongoing sexual relationship with both Shaver and another student.

Findley felt betrayed. He drove to the McCarthy house that afternoon. Only Ellie's father was home. Findley says, "I told Mark about the allegation that the defendant in this case had raped Ellie."

Ellie arrived home at 3:30 pm. She was surprised to see Findley there, and chastened when she realized why. As Mark McCarthy stared forlornly across the room, he saw his daughter glance at Findley and silently mouth the words, "You told him?"

Findley didn't stay much longer. By the time Mona McCarthy arrived home, Ellie was buried in a corner of that chocolate couch.

Ronda Verhaalen, one of five women on the jury, heard a lot of Ellie's story in the weeklong trial, and believed every word of it.

"I was a 15-year-old girl once. I got into my fair share of trouble," says Verhaalen, a mother of two from Oregon City. "I could relate to a lot of who she was and what she'd done. I thought [the verdict] was going to be slam dunk."

When the jury began deliberations Oct. 5—the day Brett Kavanaugh locked up the Senate votes he needed for his Supreme Court seat—juror Max Schuetze asked for a quick, informal vote:

Did Kyle Shaver have sex with Ellie McCarthy at least three times before her 16th birthday? (The legal age of consent is 18 in Oregon, and if the victim is under 16, the crime is third-degree rape, not merely "contributing to the sexual delinquency of a minor.")

Or was Ellie, as defense attorney Ethan Levi argued, a lying, conniving baby sister with a vicious imagination?

The straw vote came back 8-4 in favor of conviction. Verhaalen and the other four women on the jury were all in the majority that believed Shaver was guilty on most or all of the 11 charges in play.

Leaning the other way: four of the oldest men in the room. With at least 10 jurors needing to agree with the prosecution to secure a conviction, the outcome was unclear.

In jury selection, Verhaalen says, "The defense knew what they were doing, going for that older male. I suddenly realized this was going to be a longer process than I thought."

In the course of the trial, Levi, Shaver's attorney, turned to those men with a single, uncompromising argument: Ellie was a liar, and she lied about everything.

"It's really hard to see inside the mind of a teenager," Levi argued. "It's hard to know why she's making this story up. She's a dishonest person."

That argument rang true for juror Vincent Asaro.

Asaro, 69, lives in Happy Valley. Before he retired, he worked at Sears for 15 years and says he ran a computer company in Redding, Calif. During the trial, he took copious notes and reached a resolute conclusion:

"The girl is a known liar," Asaro told me during a two-hour interview at a Happy Valley McDonald's. "She kept saying she was afraid she'd ruin the family. I think that's exactly what she wanted to do. She finally has a front-row seat, instead of Breaunna."

Neither prosecutors nor a jury of his peers proved "to me [Kyle] did anything," he added. "If I hadn't stuck up for the guy, he would have been found guilty of everything. They wanted to hang him high."

Among other things, Asaro told fellow jurors he found it impossible to believe Ellie could perform oral sex on Kyle while he was driving, a conviction met with eye-rolling amusement by several others in the room.

He didn't believe Kyle left Breaunna's bed on that first April night. "He gets out of bed with a good woman, half-naked? Would I rape a 15-year-old girl when I could get all the sex I want right there?"

And when Breaunna's trial testimony revealed Shaver—who did not testify—supposedly told her he didn't have sex with Ellie, and would gladly take a lie-detector test, Asaro pounced on that pronouncement.

Breaunna's testimony was hearsay, polygraphs are unreliable, and Clackamas County Circuit Judge Ann Lininger ordered the jury to forget the entire exchange.

"He was willing to take a lie-detector test," Asaro said. "[The judge] struck that, but"—and he tapped his head—"they didn't strike it from here."

That helps to explain, juror Paul Howard said, the jury's predicament. While most of his peers understood their verdict should be based solely on the evidence and Lininger's instructions as to the law, at least two jurors, including Asaro, didn't see it that way.

"Because he's 21 and she's 15, the rule of law says she is not capable of making a consensual decision," said Howard, who lives in Canby and works with his son in a warehousing and distribution business. "But it was all or nothing for them. Because they didn't believe Kyle was entirely to blame, they weren't going to find him guilty on any of it."

They wanted physical evidence. They wanted more corroborating evidence than several Snapchat screenshots Ellie stored in the safe vault on her phone. "That wasn't particularly damning," Asaro said, "unless you knew what came before or after."

The majority of the jury leaned toward guilty votes on most of the 11 counts. They weren't impressed by Shaver's meager set of character witnesses. They found Ellie's testimony far more persuasive than the mockery of the defense attorney:

"If Mr. Shaver is guilty of this," Levi said in his closing statement, "I want [the prosecutor] to tell you why Ellie McCarthy never got pregnant."

At one point, Schuetze admits, "I wanted to jump over the barrier and scream at the defense lawyer." The way he was questioning Ellie "was making me sick to my stomach."

But the jury majority had a numbers problem. Nine jurors believed Shaver was guilty of rape and "deviate sexual intercourse," the felony charges in the first of the alleged incidents.

And 10 votes were needed to convict Shaver of any of the charges.

After eight hours of deliberation, the jury issued its verdict: It was hung on the felony charges, but the jury found Shaver guilty of the three misdemeanors regarding the touching—and nothing more—of her vagina and breasts, and compelling her to touch his penis.

On Oct. 10, Shaver was sentenced to six months in the Clackamas County Jail, and three years of probation. Had he also been convicted of one or more felonies, he might have served up to 60 months in the Oregon state pen.

Anderson-Kruger, the alternate juror, thought the compromise verdict was absurd, suggesting a sexual encounter occurred but didn't include intercourse: "How they came up with three misdemeanors is beyond me. I was absolutely floored."

Asaro? "I'm so miffed they found him guilty of anything that I can't sleep. Still," he said. "They didn't understand what reasonable doubt is. An innocent man is in jail…because he had the bad luck of getting a terrible jury of prejudging hacks."

Schuetze felt differently. Leaving the courtroom for the final time, he encountered two of the women jurors outside: "I gave them a hug and said, 'I'm sorry. It's not what I wanted, and I know it's not what you wanted. I'm sorry this is the way we're leaving things.'"

In his mind, women have been dealt a stacked deck for years. The Kavanaughs and Shavers get the benefit of the doubt. Regardless of the facts and the law, male jurors and Senate Judiciary Committees are loath to ruin a guy's career and life over allegations of sex abuse.

While Shaver is in jail, Breaunna McCarthy and her son are living in Tennessee with Shaver's father and stepmother. She still refuses to communicate with her sister and parents.

The prosecution refused to accept the jury's verdict. Come May, the state will retry Shaver on the eight felony counts, forcing Ellie to once again take the stand, hoping to convince another dozen strangers she has no reason to lie about any of this.

Levi, who is still representing Shaver, says: "Mr. Shaver vehemently denies any wrongdoing in this case and intends to seek vindication at trial. His family believe in his innocence and support him."

Retrials are always difficult for victims, and this retrial may be best explained by a hallway confrontation after sentencing.

Before Shaver was led off to jail, Tracy Macgowan, his mother, read a statement lauding his character. When she broke down during the reading, Mona McCarthy handed a box of Kleenex to the bailiff.

Lininger hailed that gesture as a sign the two families might help each other in the reconciliation and healing process.

But once her son departed, Macgowan approached Ellie and her parents in the second-floor hallway, the statement still in her hands. "Everything in me wanted to give that woman a hug," Mona McCarthy told me in December.

"I thought she was going to apologize," Ellie added.

Instead, Macgowan leaned in and said, "Kyle wants me to tell you you'll never see them again."

Ellie's sister. Mark and Mona's grandchild.

In an instant, both mothers were snarling at one another. The flare-up continued until a sheriff's deputy arrived, barking, "We're not going to do this now," and ordered Macgowan from the hallway.

When I asked Ellie if the clash had any impact on the family's decision to push for a retrial on the felony charges, she said it did: "I really did not want to go through another trial. I thought it was over and done with. But it infuriated me when Tracy came up and was talking like that."

Mark McCarthy left the courtroom during sentencing, howling in frustration and rage.

"What father wants to admit their daughter was raped within their own home?" Mona said. "We didn't protect her. We didn't see it."

But if Mona doesn't pretend the family has gotten past any of this—"I see a box of Krispy Kreme, and it infuriates me," she said—she's upbeat about Ellie.

Her daughter, who turned 18 in December, is no longer burdened with a story she can't tell. She's no longer huddled at the scene of the crime. "After all this happened," her mother says, "I asked her, 'Are you OK? Do you want us to get a new couch?' And she said no."

Steve Duin has worked as a journalist in Oregon for 38 years. He was The Oregonian's Metro columnist from 1994 to 2015, and still writes a Sunday Opinion column for The Oregonian/OregonLive. This is his first story for Willamette Week.

https://www.wweek.com/news/courts/2019/01/09/who-do-you-think-theyre-going-to-believe/

 

I believe her

 

Glad I read this thread--reminded me that I have jury duty next week. Sadly, no jury will have me.

 

I had jury duty two years ago...didn't get called upstairs. Sat in the jury room for 2 days. Before that I had never been called.

 

So you gave her oregano and then hit on her?!? Dude, that's even worse.

 

Ah, finally reading what we've told you for years I see!

 

TL;DR version of Maris' post.

White men would never rape a white girl, but brown people rape everyone.