In 18 years, retired Dean of Students Charles Couture only saw one prosecutor or law officer testify as a witness at a University of Montana student disciplinary hearing: Kirsten Pabst.
Pabst, then Missoula County's chief deputy prosecutor, testified on behalf of a student accused of rape. She had declined to file charges against the man.
In an interview last week, Couture described Pabst's presence as "totally inappropriate." He said he is still bound by privacy laws but is able to discuss material from the 2011 hearing that is now in the public domain.
Last month, investigative journalist Jon Krakauer cracked open the door on the University Court proceeding in his book "Missoula: Rape and the Justice System in a College Town."
The material offers new information about the role Pabst played at the hearing and raises questions about her decision to participate.
Pabst, now Missoula County attorney, made a last-ditch effort to delay the release of the book. In a lengthy letter to Doubleday, she denounced Krakauer's characterization of her and denied an unspecified "serious conflict of interest."
Pabst has argued she did not testify on behalf of either party but attended the 2011 hearing as an educational witness, in part because UM officials could "benefit from a civics lesson."
She has said prosecutors have an obligation to "demystify the criminal justice process" and in that role she also speaks to numerous civic groups, students and others.
"I was asked to speak about the criminal justice process, the standards of proof, and why this case lacked probable cause," Pabst said.
In "Missoula," the author presents dialogue between members of the University Court and Pabst. The excerpts come from a copy of the hearing transcript leaked to Krakauer and show that Pabst discussed the case in detail, speaking favorably of the accused man and with skepticism of the woman who reported the rape.
In an interview, Krakauer described Pabst's participation in the UM hearing as "egregious." Last week, a longtime member of the Montana State Bar Association's ethics committee said the prosecutor's presence gave her "great pause" — at least on its surface.
Pabst responded to the discrepancy between her description of her involvement and the actual testimony offered in the book: "Everything I would have said would have been in response to questions that were posed to me by participants and would have pertained to my analysis of the case for possible prosecution."
Kerry Barrett, a woman who testified as a witness in the proceeding on behalf of the victim, said she is pleased the book sets the record straight on Pabst's participation.
At the start of the hearing, she said, the parties sat on separate sides of the room, and Pabst sat with the accused student and his parents.
"For years, I've been trying to draw attention to this, and she kept saying, 'I wasn't there on his behalf,'" Barrett said. "Now, the truth is in the book. It's told from transcripts, so she can't lie anymore."
The hearing took place after Dean Couture expelled a student for rape and the student appealed, according to "Missoula." The book said Pabst was the first witness to testify on behalf of the accused student and spoke "in support of Smith" for 42 minutes. The author uses Calvin Smith as a pseudonym for the man.
Kaitlynn Kelly had reported the rape, and Pabst's participation left her "dumbfounded," according to "Missoula." Through Barrett, Kelly agreed that the Missoulian could publish her name.
"Kirsten Pabst refused to even talk to me when I was trying to find out why nothing was being done about my case. ... And then she goes out of her way to show up at University Court to testify for the (expletive) who raped me? I couldn't believe it," Kelly said in the book.
In an email to the Missoulian, Pabst said her presence was not a conflict of interest because her role as a prosecutor is to be objective, not to represent either side.
"Prosecutors do not represent individuals but represent the state of Montana in enforcing the criminal code," she said. "Victims often have separate legal counsel and advocates to represent them, with very different roles than that of the prosecutor, who must base all of her decisions on facts and evidence, not on outside influences."
She said she attended the UM hearing at the request of the accused student's lawyer, Josh Van de Wetering. She did so after she consulted with then-County Attorney Fred Van Valkenburg, who recommended she participate, she said.
"In answering questions posed by the dean of students and the student panel, I discussed the different standards of proof and that, because theirs was much lower, explained that they had the option of coming to a dissimilar conclusion," Pabst wrote.
She said UM was using an academic standard of proof, "preponderance of the evidence," which is a significantly lower standard than law enforcement uses.
Following the hearing, the University Court reaffirmed the man's expulsion from UM.
Last week, Couture said he was displeased with Pabst's presence, as was nearly everyone else in the room aside from Pabst.
In fact, he said, her participation was an "agitation" at the proceeding.
"In my opinion, her presence at the University Court hearing added absolutely no clarity, was of no help to anyone, and tended to confuse people," Couture said.
He said he has read the first half of Krakauer's book, which includes information about the hearing, and is pleased with the accuracy of his reporting and factual representations.
Pabst did discuss probable cause at the hearing, Couture said. However, he said her argument that she was there to educate UM officials doesn't hold up.
"That was totally inane, that statement. We did not need a 'civics lesson.' We are all well-educated, all well-trained. We knew our jobs. We did them very well and very fairly. And it still, in reflection, makes no sense to me as to why she was there," Couture said.
Current Dean of Students Rhondie Voorhees directed questions about the participation of law enforcement at disciplinary hearings to legal counsel Lucy France.
France said UM's process for addressing sexual assaults has changed, and few conduct cases have arisen since the change. She said she could not comment "in a vacuum" on whether a prosecutor's participation would be appropriate; she said the propriety would depend on the situation.
Couture said the hearing Pabst attended was the first time he'd seen a prosecutor serve as a witness at a University Court case: "She has not, as far as I'm concerned, made her true intentions for being there clear."
Van de Wetering, the accused man's lawyer, had asked the detective who investigated the case to testify as well. The Missoula Police Department did not allow it.
In a phone call, former Police Chief Mark Muir said he had never received a request for one of his officers to testify at a university proceeding before.
He said he did not believe the structure of UM's disciplinary process would allow his detective to limit her testimony to process, and since the student had not been charged, police needed to protect his privacy.
The student asked to waive confidentiality, but Muir maintained his denial of the request, he said.
"I said no. You can't just waive the confidentiality. We have no business testifying in this proceeding," Muir said.
Susan Wordal, who has served on the state bar ethics committee for at least 15 years, said she has not read Krakauer's book and she has no knowledge of the testimony given at the disciplinary hearing. The lawyer said the prosecutor's decision to speak at a university hearing is not necessarily unethical but it gave her "great pause."
"My first reaction is 'yikes,' and my second reaction is 'but I don't know her side of the story, and until I do, I can't say it was totally and completely wrong,'" said Wordal, who served as city prosecutor in Bozeman for 21 years and is now in private practice.
She also said a prosecutor may intend to speak at an administrative hearing about one matter, such as the criminal justice process. In the course of questioning, though, the lawyer may in fact end up speaking to specifics and going "farther afield than was ever intended."
"I can say that when you get into a hearing like that, they tend to go places you don't expect," Wordal said.
And in such a scenario, the minute a lawyer moves from talking about legal theory to the facts of a case, the attorney is in an "awkward position." So ethically, Wordal said, she cannot recommend lawyers put themselves in such positions, although doing so isn't necessarily wrong.
She also pointed out another reason lawyers should be cautious when walking into a proceeding in a different jurisdiction, such as a university. The first thing people see is the "attorney label," and committee members may give testimony from a lawyer more weight than statements from other witnesses.
A prosecutor does not lose her right to her own personal opinions just because she works for a government agency, she said. But she herself would think twice — and consult with a supervisor and other trusted colleagues — about whether her appearance would be appropriate.
"Red flags are rising for me, that's for sure," Wordal said. "Whether it violates an individual rule, I don't know."
She also said most disciplinary hearings in the university system are supposed to be closed. The reason is because committee members want witnesses to speak candidly in order to evaluate whether someone violated a rule, she said.
Wordal said if she had testified at a closed hearing and subsequently learned a journalist had obtained a copy of the transcript, she would be distressed.
"I'd be shaking in my boots because I would have gone into that hearing thinking, 'I'm here to try to help everybody understand the process, maybe my decision-making in particular,'" Wordal said.
She may have felt compelled to present the reasons she firmly believed a crime was not committed: "As a prosecutor, I might be wrong as hell, but I may be very convinced in my determination."
Even if she was wrong in her decision, the disclosure can taint the process in which she believed she was participating, Wordal said.
At the 2011 hearing, one observation in particular troubled Kerry Barrett, and it has ever since. Witnesses waited outside the conference room for the duration of the four-hour hearing, and Barrett recalls Pabst sat close to the accused man's parents.
She remembers them laughing and chatting.
"That's where I observed Kirsten talking with his parents like they were old friends. I don't know if they were or not, but it certainly appeared like they knew each other," Barrett said.
She said the others in her group observed the familiarity as well.
"We were dumbfounded. That's the only word I can use to describe it. All of us thought it was crazy," Barrett said.
In phone interviews with the Missoulian, the father and mother of the accused student denied knowing Pabst. Both said they met her that very evening and had not spoken with her previously; the father did not believe his son knew Pabst, either.
In an email responding to questions, Pabst said she had never met or spoken with the student or his parents before. She said if she appeared friendly, it's because she is.
"I was kind to everyone I saw at Main Hall because I am a nice person and was similarly kind to the victim advocate, the former dean of students and whoever else was there," Pabst said.