July 11, 2019 633 PM
MARFA – Jeff Elrod was found not guilty of an assault charge brought on behalf of Ryann Bosetti Tuesday morning in Marfa Municipal Court. The famed contemporary artist was charged with a Class C misdemeanor when Bosetti claimed Elrod had exposed her breast and put it in his mouth without her consent. Judge Jeanette Duer stated to a packed courtroom that it was, ultimately, the prosecution’s lack of evidence that led to her not guilty determination.
Elrod’s defense team did not deny that the alleged incident occurred the night of August 24, 2018, in the alley behind Marfa restaurant Cochineal. Instead, they argued that Elrod believed his advances would not be “offensive or provocative” to Bosetti. The trial lasted under two hours, and Bosetti was the only witness Special Prosecutor Sandy Stewart called to the stand.
Seating in the Casner Room at Marfa City Hall was limited to 30 chairs, which filled up well ahead of the trial Tuesday morning. Judge Duer had the option of holding court at the County Courthouse but elected to keep the smaller venue and limited seating. She refused to allow recordings of the hearing. Outside the courtroom, a crowd gathered––peering through the windows of Marfa City Hall––awaiting a verdict.
Elrod arrived in khaki slacks and a blue blazer, flanked by Criminal Defense Attorney Dick DeGuerin, former Public Defender Liz Rogers, his girlfriend and two others. Additional seats were placed at the defendant’s table–normally reserved for the client and lawyer only–to accommodate Elrod’s team of supporters. Earlier, the bailiff had hassled Bosetti’s mother for saving a seat in the audience for Bosetti’s father, telling her it was first come, first served.
Special Prosecutor Sandy Stewart, appointed as Bosetti’s representation, took the only seat at the plaintiff’s table. Bosetti was cloistered in a back room until she was called as a witness. Attorney Stewart had not consulted with Bosetti the morning of the trial, and in fact, Bosetti says the prosecutor working on her behalf “stopped returning my texts and was non-responsive to the majority of my emails after Mr. DeGuerin became involved with the defense, in addition to cancelling all of my witnesses.”
In texts exchanged between Bosetti and the prosecutor, Bosetti inquired about a time for their pre-trial preparatory meeting, to which Stewart responded, “Just be at the Casner Room at 8:45am on Tuesday morning. You’re ready.” Bosetti, replied that she was not ready, but never received another response. “The next time we spoke, she was addressing me in court,” Bosetti said.
The trial began when Stewart called Bosetti to the stand and had her recount the night’s events. Bosetti alleged that one night in August, she had been out with Elrod. As the two departed a local bar after midnight, Elrod exclaimed he had to kiss Bosetti’s breast. She froze, closed her eyes, and when she re-opened them, she said, Elrod had removed her breast from her shirt, had it in his mouth, and it looked like he was breastfeeding.
The plaintiff said she was in shock, and continued walking to Elrod’s studio. They sat on his couch for a brief amount of time, where he touched her leg. She said she had to leave, and departed. Once the prosecution’s timeline was established, Stewart concluded her questioning. For the remainder of the trial, the prosecutor spoke sparingly.
In contrast, DeGuerin hammered Bosetti throughout the cross-examination, focusing on a text message she sent to a friend the morning after, about a “[expletive] up pact” made with Elrod that night while they drank and talked, to date if their individual relationships deteriorated. It was unclear whether the pact was serious. DeGuerin then turned the questions toward consent.
Specifically, the State of Texas v. Jeff Elrod hung on a single word—let. Did Bosetti “let” Elrod put his mouth on her breast?
The defense team hinged their case on conversations Bosetti had in the days following the incident. DeGuerin pressed Bosetti to admit she had texted a friend and told a client that she “let him touch you and kiss your boob.” DeGuerin asserted that Elrod exclaiming “May I kiss your breast?” before the incident was a request for consent, and that Bosetti using the word “let” implied she had given that consent.
Bosetti eventually confirmed that she told the friend and the client she had “let” Elrod touch her breast. “Via inaction, I let him. Being frozen, I let him. That’s what ‘let him’ means,” an exasperated Bosetti replied, before the judge reprimanded her for elaborating on the meaning of her words, and exceeding the narrow limits of the required yes or no answers. While DeGuerin objected all throughout Stewart’s examination of Bosetti, Stewart remained largely silent during DeGuerin’s cross-examination.
Daniela Chisolm, a criminal defense attorney from El Paso who attended the trial, spoke with the Sentinel after the case to discuss the role of prosecutors, who are assigned by the state to their client rather than being hired by the plaintiff. The attorney said, “Common behaviors of a prosecutor who is advocating for their client are to meet multiple times with the client, to develop witnesses and witness lists, to object in the trial when the witness is being badgered and harassed and to follow up and clarify information the defense team has tried to point out. Their job is to advocate.”
According to Chisolm, “When a defense attorney is presenting a consent defense, it’s easy for a prosecutor to simply ask the victim in the case additional questions to further prove that the act was not consensual. The prosecutor can just clarify the issue of consent. Additional witnesses can be brought to testify, and the victim can be asked further questions.”
Chisolm emphasized that the main role of the prosecutor is to build a case that works to prove beyond a reasonable doubt that the defendant committed a crime.
In the trial, DeGuerin continued questioning Bosetti before approaching an easel to pin up large print outs of her text correspondences. Earlier this year, Bosetti voluntarily handed over her cell phone, after prosecutor Stewart told her a subpoena would take months but voluntary participation would return Bosetti’s phone quickly.
Without protection from a subpoena, the defense had the ability to explore Bosetti’s entire phone with no protective parameters to what they could review. Stewart also advised Bosetti to hand over her Apple password.
Bosetti informed her prosecutor that she had deleted text messages between herself and a handful of friends while upset. DeGuerin confirmed that the defense team obtained Bosetti’s deleted messages from the other parties involved in the text conversations, and then shared the texts with prosecutor Stewart. Bosetti claims Stewart never shared the text evidence with her ahead of trial though. Instead, when the messages were pinned on the easel at trial, she says she was seeing them for the first time since deleting them.
The texts from Bosetti to a friend recounted the event timeline. At one point she said, Elrod was “telling me how hot I am,” then said, “And I’m holding him off but then we walk him home and he’s like I have to kiss your breast and can I.” She adds, “And I let him.” Later in the messages, she stated, “I never kissed him but I let him touch me and kiss my [expletive] boob.”
As the trial wore on, DeGuerin zeroed in on the defense’s primary argument. “Did you give Jeff any reason to believe his actions would offend you?” Bosetti acknowledged that assault laws in Texas require the defendant to believe he was behaving in a way that would offend or provoke Bosetti in order for it to be assault.
“When I said I let him, I never stopped him. If that’s the way the law works, that’s the way it works,” Bosetti resigned. “But if that’s the way it works, every woman should leave the state.”
“Do you realize your claims here diminish the credible claims of all women?” The audience gasped at the accusation DeGuerin had lobbed at Bosetti. A woman in the audience cried out, “I love you, Ryann.”
Judge Duer called for order in her court, threatening that the bailiff would escort out anyone participating in outbursts or gasps in her court. The judge and bailiff sought the offending speaker, and a man in the audience pointed a finger at a woman, blaming her for the outburst. “It wasn’t me,” the woman replied. The judge and bailiff couldn’t identify the speaker.
As the audience quieted, another woman in the crowd began audibly sobbing. Stewart finally spoke up, objecting that DeGuerin’s comment about other women’s credible claims was irrelevant.
Cross-examination concluded, and Bosetti was sent from the stand and into the audience, whose seats were largely filled by defense witnesses DeGuerin had prepared, but never called forward. Judge Duer asked for the next witness, but Stewart responded that the government was resting its case. Without hesitation, Judge Duer swiftly stated that a lack of evidence from the prosecution supported a “not guilty” finding.
Elrod has been fully vindicated in the eyes of the law.
“Jeff thought she was going back to his studio, and they’d probably hook up, DeGuerin said after the trial. “Maybe she had morning-after remorse, and that’s not unusual.” DeGuerin, in a letter to the Editor published in this week’s issue, called the breast in mouth “at worst, a clumsy pass.”
As for Elrod, the artist stated, “I am happy that my family, friends, business associates and everyone else finally learned the truth about what really happened on this matter. I look forward to moving on with my life.”
Bosetti plans to file a formal grievance against prosecutor Sandy Stewart. Marfa Police Chief Steve Marquez, who took Bosetti’s incident report, said, “I really urge women not to be afraid to report sexual assault or any kind of assault for that matter. I don’t want anyone to lose trust or hope in us or the system.”
Touching or exposing a woman’s breasts for sexual gratification will be reclassified in Texas as an “indecent assault” in September this year, carrying the charge of a Class A misdemeanor, with a maximum penalty of one year in jail and a $4,000 fine.
