For one McPherson County woman, the wheels of justice have not turned quickly in the 9th Judicial District, and she is trying to get some help.
Madison Smith, the daughter of a veteran police officer, is making use of the fact that Kansas is one of only six states that allows for members of the public to petition for a grand jury. That’s just what she is doing in response to how a case in which she is the victim is being prosecuted in the 9th Judicial District, which includes Harvey and McPherson counties.
Citizens can call a grand jury after collecting signatures equivalent to 2% of votes cast in a county in the last gubernatorial election, plus 100. According to findlaw.com, a grand jury does not find or determine guilt or punishment of a potential defendant. Instead, a prosecutor will work with a grand jury to decide whether to bring criminal charges or an indictment against a potential defendant — usually reserved for serious felonies.
Smith reported a rape while a student at Bethany College. It was the worst night of her life — by her own admission what started Feb. 11, 2018, as consensual turned violent — and when she asked for the encounter to stop, it did not. When she tried to physically stop violence against her, it did not stop.
She told investigators she was slapped across the face and strangled with both hands several times. She struggled, he squeezed harder and she started to lose consciousness. There had been no discussion or agreement for that kind of activity.
“I have good days and I have bad days. I am starting to have more good days,” Smith told the Sentinel on Monday.
She has been trying to recover for more than two years from an evening that left more than bruises on her face and physical wounds.
There was a Title IX investigation by Bethany College. The man involved, Jared Stolzenberg, was found to be in violation of the college’s Sexual Misconduct Policy and Complaint Resolution Procedures and suspended from campus.
Smith continued to attend college and is on track to graduate in November.
“In my book they have done everything right and did everything they could to make me feel safe on campus. They did everything they could to keep me here,” Smith said.
Her experience with the county prosecutor, however, has not been as positive and what led her to begin work to call a grand jury.
Responding to an email from the McPherson Sentinel, a sister publication to The Newton Kansan, county attorney Greg Benefiel declined to comment citing the Rules of Professional Conduct concerning an open case.
According to Smith and her legal team, Benefiel has refused to pursue rape charges against her attacker. That’s not to say he has not prosecuted — Stolzenberg pleaded guilty to charges of aggravated battery. His sentencing on those charges is scheduled for Aug. 21.
“It has left a lot to be desired.” Smith said. “Having the county attorney tell you that this was ’immature sex,’ that is scary and I am sure that he has told other girls that.”
She says that she has felt revictimized by the prosecutor’s office while being told there is nothing that can be done to prosecute the crime of rape. Apparently, the encounter starting as consensual is a problem.
But she did fight back, and in her mind and the minds of others she withdrew her consent.
Boardman points out it is hard to speak, or yell, when being choked to near unconsciousness, as Smith says she was. A seasoned investigator, he is co-author of a Trauma-Informed Victim Interview protocol for adult victims of sexual assault and is a consultant.
After he heard from Smith’s mother about a request from Benefiel, he jumped into the case — pro bono.
"After mom went in and had a two-hour conversation with (county prosecutor Greg Benefiel) he told her he would like to have a mock trial with Madison so he could cross-examine her to see if she could hold up under the pressure. That has been done before ... what it does is it breaks the victim, and retraumatizes the victim,“ Boardman said.
The arraignment for Stolzenberg was, according to Smith, fast-tracked for a plea once defense “caught wind” of her petition drive and the retention of her own lawyer.
“He told us he would ask for a continuance. ... Once he saw my attorney, he flipped sides and he did not see a reason to ask for a continuance. He told us one thing and did the complete opposite,” Smith said.
She and her advocates are in the middle of a second petition drive — her first effort was rejected on a technicality.
She collected 426 signatures on a petition, well more than the 335 needed to start a grand jury. The petition was rejected, as not all pages of signatures collected had a co-signing witness.
It is unclear what happens to Smith’s petition if sentencing occurs prior to the filing of her petition.
“We are under the impression that double jeopardy does not apply,” Boardman said. "The other charges that we feel should have been charged have not been. Double jeopardy, we like to think of as the whole event. The way the laws are written, we feel that each law that is broken is separate.”
Smith, her family and advocates held a petition drive in McPherson a few weeks ago, and it is believed there are enough signatures on her second petition to file for a grand jury, but they would like a few more.
“We might do another event here in Lindsborg to catch some more people here,” Smith said. “We are at the required but we do want to have a cushion. ... There are so many details. There was a minor issue with the first round, so why not try again?”