Missoula (32 page)

“I didn’t, really,” Johnson confessed, but he thought it was possible that “they would talk again.”…

“How were you feeling about the evening?”

“That we had sex, and that afterwards I wish we wouldn’t have, because of Kelli.”

“So did you talk at all on the ride home, the two-minute ride home?” Pabst inquired.

“No,” Johnson said. When Pabst asked what happened after they arrived at his house, he answered, “I said, ‘Thanks for having me,’ and got out of the car.” Then he “went in the house and went into my room.”

AFTER PABST FINISHED
her direct testimony, prosecutor Adam Duerk strode to the dais to cross-examine the witness. He asked if Johnson thought Washburn was smart, and Johnson said yes. “You thought she was a nice girl, correct?” Duerk inquired.

“Yes,” Johnson answered.

“And you never really thought of Cecilia Washburn as a good friend….You didn’t know Cecilia Washburn very well through any of this; is that fair?”

“Yes.”

“But you liked her….You went out on a few dates together?”…

“Yes.”…

“You didn’t see anything in Cecilia Washburn that indicated to you that she was mean?”…

“No.”

“You didn’t see anything on those dates…that made you think that she was crazy, correct?”

“Correct.”

Adam Duerk pointed out to Jordan Johnson that he never really had a “boyfriend-girlfriend relationship” with Washburn “and the
relationship that you did have, to the extent one existed, you didn’t really think it was going anywhere….In fact, you thought it was going nowhere, correct?”

“Yeah.”…

“Now, in terms of your relationship with Kelli Froland, there was a relationship there; fair?”

“Yes.”…

“You went on dates with Kelli?”

“Yes.”

“You brought her over to your house?”…

“Yes.”…

“So she met your family?”…

“Yes.”

“Nothing like that ever happened with Cecilia Washburn, correct?”

“Correct.”

Duerk paused for a moment, then asked Johnson about the sex that took place when Washburn was kneeling on the bed, facedown with her buttocks raised, as he penetrated her from the rear. “While you’re having sex with her from behind,” Duerk inquired, “your hands are on Cecilia’s forearms, correct?”

“Yes,” Johnson answered.

“Her arms are above her head, correct?”

“Yes.”

“All your weight was in your hands, correct?”

“Most,” Johnson hedged.

Duerk asked Johnson to look at page 42 of the statement he gave to Detective Brueckner on May 2, 2012. “I’m looking at your third answer down,” Duerk said. “I’d like to read your statement…, and please tell me if I’ve read it correctly. Okay?”

“Okay,” Johnson said.

Duerk recited, “ ‘But all my weight is in my hands.’ ” Duerk looked up at Johnson and asked, “Did I read that correctly?”

“Yes,” Johnson acknowledged.

Launching into a series of brief, piercing questions, Duerk asked, “So her hands are above her head, correct?”

“Yes,” Johnson calmly answered.

“Your hands are on her forearms?”…

“Yes.”

“You’re penetrating her from behind…and all your weight is on your hands?”…

“Yes.”

“So she was pinned to the bed, correct?”

“I don’t know.”

“You had your hands on her forearms and you were holding [her] forearms down, correct?”

“Yes.”

“And you’re behind her, correct?”

“Yes.”

“All your weight is on those forearms, correct?”

“Yes.”

According to his official Griz publicity profile, Jordan Johnson’s height was six feet, one inch, and he weighed two hundred pounds. As he sat on the raised witness stand at the front of the courtroom, Johnson’s heft and muscular physique were unmistakable. Appraising Johnson with an accusing gaze, Duerk asked, “You’re a big person, correct?”

“I don’t know,” Johnson answered.

“All your weight was in your hands?”…

“Yes.”

“So you were pinning her down; is that fair?”

“Fair.”

“So she was pinned to the bed, correct?”

“I guess.”

“And you said nothing at this point?” Duerk asked.

“Right.”

Before the trial, Cecilia Washburn had testified that at this particular moment during the alleged rape, Johnson had angrily declaimed, “You said you wanted it! You said you wanted it!” But Duerk couldn’t share this information with the jury because the prosecution had asked for, and been granted, a judicial order prohibiting the defense from mentioning that twenty-four hours before the alleged rape at the Foresters’ Ball, according to Johnson and his friend Alex Bienemann,
Washburn told Johnson, “I would do you anytime.” If the prosecution asked Johnson about telling Washburn, “You said you wanted it!,” the defense would have been allowed to bring up the fact that Washburn had allegedly offered to have sex with Johnson “anytime.”

So Duerk simply asked Johnson, “You didn’t talk to her at all during this, right?”

“Correct,” Johnson answered.

“Then you pulled out and ejaculated?”…

“Yes.”…

“Now, during sex, everything seemed normal to you?”

“Yes.”

“You didn’t have any sign that she was reluctant in any way….And if she had said anything like ‘No, not tonight,’…or indicated in any way that she wasn’t completely into it, you would have stopped and asked her what was going on, right?”

“I would have just stopped.”…

“But nothing seemed weird to you at all?” Duerk inquired.

“Correct,” Johnson answered.

“Nothing seemed weird to you during the sex?”…

“Correct.”

“Nothing seemed weird to you after the sex?”…

“Correct.”…

“She seemed fine to you….According to your testimony, she wasn’t upset at all this entire time, correct?”

“She wasn’t.”

“Okay. And you would have known if something was wrong?”…

“Yes.”

“Mr. Johnson,” Duerk asked, “Cecilia sent a text message within minutes after you penetrated her, correct?”

“Yes,” Johnson answered.

“She sent this text right after the intercourse was over?”…

“I believe so.”…

“You’ve seen that text message?”…

“Yes.”…

“And that text message had a time-and-date stamp on it, correct?”

“Correct.”…

“This text message said, ‘I think I might have just got raped, he kept pushing and pushing. I said, no, but he wouldn’t listen. I just want to cry. Oh my God, what do I do?’ Correct?”

“Yes.”…

“Now, this was the first time that you’d had sex with Cecilia, correct?”

“Yes.”

“And let me just make sure I’ve got this straight,” Duerk said. “You really had no conversation the entire time?”…

“Correct,” Johnson replied.

“This is your first time with Cecilia?”…

“Yes.”

“And your first time, you pinned her forearms to the bed, correct?”

“My hands were on her forearms.”…

“Okay. You admitted that before. So you pinned her to the bed, right?”

“Yes.”

“After the intercourse, you left?”…

“She drove me home.”

“And on that ride home, you claim nothing was wrong with Cecilia, right?”

“Correct.”…

“And you said that you would have known if something was wrong?”…

“Yes.”…

Having methodically led Jordan Johnson to the edge of the cliff, Adam Duerk asked the question intended to nudge him into the abyss: “You would agree that something is clearly wrong when someone sends a text message indicating they’ve just been raped, right?”

“I don’t know,” Johnson said.

“You don’t know?” Duerk scoffed.

“Correct,” Johnson answered.

Incredulous, Duerk demanded, “That seems normal to you? If someone sends a text indicating they’ve just been raped?”

“That’s not normal,” Johnson admitted.

“That is not normal,” Duerk affirmed. Then he asked, “You would agree that if…the events of that night had happened as Cecilia described it, this text would make sense, correct?”

“If it happened,” Johnson agreed. “But it didn’t.”

“If it did not happen as Cecilia described it,” Duerk countered, “this text would be completely crazy to send, correct?…And you said that you had never seen any indication that Cecilia was crazy before this night happened, correct?”

“Correct.”…

“You would agree that if a woman says no, and a man does not stop his sexual advances and penetrates her, that is rape, correct?”

“That’s true.”…

“You would agree that a woman can change her mind in the middle of sexual activity and still say no?”…

“Yes.”

“You would agree that if she physically resisted, you did not have consent, correct?”

“Correct.”

“You would agree that if she put her knees up to stop you, you didn’t have consent, correct?”

“Correct.”…

“You would agree that if you held her down with your forearm, you did not have consent?”…

“Correct.”

“And you have no explanation for the bruising on her chest or shoulders?”…

“Objection, Your Honor!” Kirsten Pabst protested. “That misstates the evidence. There is no bruising.”

“I don’t think that misstates the evidence,” Judge Townsend pronounced. “Overruled.”

Resuming his interrogation without missing a beat, Adam Duerk again asked Jordan Johnson if he could explain the bruises on Cecilia Washburn’s chest and shoulders. Johnson acknowledged that he couldn’t. “You’d agree that if you held Cecilia’s head down while you penetrated her from behind, that would indicate you did not have consent, correct?” Duerk asked.

“Correct,” Johnson replied.

“You’d agree that if you…bruised her genitals or injured her genitals, that may indicate you did not have consent, correct?”

“I don’t know.”

“You’d agree that if you had said, ‘Turn over, or I’ll make you,’ you did not have consent?”…

“Correct.”

“Thank you. I have nothing further at this time.”

JORDAN JOHNSON WAS
excused from the witness stand at 11:15 Wednesday morning, after testifying for 157 minutes, including his appearance on Monday. His father, Marty Johnson, was called to testify a little after 2:00 on Wednesday afternoon. Under gentle questioning from defense counsel Kirsten Pabst, Marty said he was midway through his thirtieth year coaching football and teaching math to high school students in Eugene, Oregon. “How close is your family?” Pabst asked.

“I can’t imagine there being very many families that do as many things together as we do,” Marty answered. “So I would say we are extremely close.” As his father spoke these words, Jordan wept openly in his chair at the defense counsel’s table. He cried intermittently for the remainder of his father’s testimony, at times putting his head in his hands or resting it on the table.

“How often do you talk to Jordan?” Pabst asked.

“Probably more than he would like me to,” Marty answered. “I communicate with him multiple times every day.”…

“How would you describe his personality?”

“He’s quiet. He’s an extremely humble kid. Very, very respectful.” A few minutes later, Marty added, “I’m like any parent. I’m proud of my kids. But my…livelihood is being around adolescents, young adults, high school–age kids. And I can say, with my right hand to God, I haven’t been around a more honest young man than Jordan. I just feel lucky to have him as my son.”

“Have you noticed changes in your son since this allegation was lodged?” Pabst asked.

“Jordy is an extremely strong and resilient young man, but it’s had a huge effect on him. Huge effect.”

“What effect on your family?”

“It’s— Short of losing a child, I couldn’t imagine a worse situation to have this kind of accusation [about] a kid of his background. I don’t know, maybe there are stories of things that are more devastating. But I wake up every day feeling suffocated. And it’s been that way for thirteen months now.”

Prosecutor Adam Duerk realized that cross-examining such a sincere and immensely appealing witness would only be counterproductive for the prosecution. So after fifteen minutes on the stand, Marty Johnson was excused. At least three or four members of the jury looked like they were on the verge of breaking into tears as he walked back to the gallery, where he sat beside his wife for the remainder of the trial.

      T
he final two witnesses—one called by the defense, the other by the prosecution—testified on Thursday, February 28, 2013. The defense witness, a psychiatrist and neurologist named William Stratford, had never examined Cecilia Washburn, but he’d reviewed her counseling and medical records at the University of Montana’s Curry Health Center at the request of David Paoli and Kirsten Pabst. Stratford argued that although the records indicated that Washburn suffered from anxiety and depression in the aftermath of her sexual encounter with Jordan Johnson, the symptoms she exhibited did not rise to the level of post-traumatic stress disorder.

The prosecution witness, David Bell, was a physician at the Curry Health Center who treated Washburn after she was allegedly raped. He testified that the symptoms she displayed matched all the criteria for PTSD.

Friday, the first day of March, was the trial’s final day. More people were jammed into the gallery than on any previous day. Five television cameras bristled from tripods next to the jury box. Most of the Griz football team and many of the coaches were present. Jordan Johnson’s family sat on the east side of the gallery. Cecilia Washburn and her family were seated on the west side.

Prosecutor Suzy Boylan began the state’s closing argument by saying the case “was about the differences between being raped by a stranger and being raped by someone you know and trust. It’s a case about the difference between science and myths….It’s not about football, or the university, or misunderstanding, or miscommunication,
or mixed signals. And it’s not about an insensitive lover that didn’t cuddle enough. It’s about a defendant who didn’t take no for an answer.”

No one with a heart, Boylan continued, could fail to “be moved by some of the testimony in this case, from the defendant’s father, for example. It’s okay to have that sympathy. It’s okay to find the defendant, or his dad, or their supporters likable. But you can’t acquit him because of feelings. You can’t acquit because you feel for the defendant and his family, any more than you can convict because you feel for Cecilia and her family….

“The state has to prove the elements of the offense beyond a reasonable doubt….This is not beyond a shadow of a doubt or beyond all doubt. To prove something beyond all doubt or beyond a shadow of a doubt would require a camera, or all of us being there as the situation unfolds….Conflicting accounts are not automatically reasonable doubt. It is not fair to a victim—or to a defendant, for that matter—to be judged based on myths, misconceptions, or stereotypes. But that’s exactly what the defense is hoping that you’ll do. So [Dr. David Lisak was] here to dispel some of those myths and misconceptions. That’s what experts do.”

Lisak had pointed out that “rapists can be men who are good-looking, who are likable, charming, gentle, and even timid,” Boylan reminded the jury. He made it clear that “there is no profile” of a rapist. Nobody can be ruled out. “Good people can do bad things.”

Washburn had stated that when she was being raped, it felt “like a dream where you want to scream but you can’t,” Boylan said. “She described being in complete shock.” When she texted Stephen Green, “I think I might have just gotten raped,” Washburn “wasn’t confused about whether she had been raped or not,” Boylan asserted. “She told us, ‘I was sure I got raped, but I didn’t want to believe it’—one of the classic responses described by Lisak.”

A person who commits rape, Boylan said, “especially one like this, is the person who’s in control. He’s in control of the time, the place, the victim.” But the rapist can’t control everything, Boylan told the jury, “and those things he can’t control are what you should be looking at.” Although most rape victims don’t report what happened to the police, Jordan Johnson couldn’t control whether Washburn
would be “in that small fraction of women who do choose to report. He couldn’t control that she sent that text. He couldn’t control how her body would show signs.”

Johnson, Boylan continued, “left two kinds of marks on Cecilia Washburn that night, the physical marks and the psychological marks. And those marks…tell you a story of what happened in that room as surely as if a camera had been in there. The first is the mark he left on her chest. He had no explanation for it, but it was there….The genital injuries, as you have seen, can be explained away in many ways.” Boylan conceded that these wounds were not a smoking gun. But the trauma Washburn experienced left an unmistakable psychological mark. “Call it PTSD,” Boylan said, “call it long-term anxiety, call it whatever you want—the defense can deny the diagnosis, but they cannot dispute the symptoms, the symptoms that everybody in her life has seen.”

Before February 4, 2012, Boylan noted, Cecilia Washburn “was vibrant, she was social, she was outgoing. She didn’t take medications. She didn’t see a counselor. She was a normal young woman who earned a place in a highly competitive and very demanding academic program. After February 4, she struggled….And it has been absolutely established that Cecilia Washburn changed drastically after February 4.”

Washburn, Boylan said, is not the “hysterical drama queen the defense would have you believe she was prior to February 4.” Jordan Johnson’s attorneys, Boylan explained, “need you to believe” that Washburn conforms to “a very obvious stereotype of a woman that’s hysterical, vengeful, and deceptive. The crazy woman they warn you about. But that’s not who you met in this trial.”

Rape, Boylan pointed out, is the only crime in which the victim is presumed to be lying. “If a person was mugged in an alley,” she asked the jury, “would we be skeptical of the victim’s testimony…because there weren’t any eyewitnesses?” Would we doubt the victim of a burglary, Boylan wondered, “because they left the door unlocked?” The victim is the wrong person to blame, she argued, whatever the crime. It’s the offender who needs to be held accountable.

There was reason to believe that Jordan Johnson was “a decent young man,” Boylan acknowledged. “But he committed a crime.” The
jury had been presented with all the evidence they needed “to give Cecilia the accountability she deserves,” she said. “We humbly ask that you convict this defendant of sexual intercourse without consent.”

DEFENSE COUNSEL DAVID PAOLI’S
truculence in the courtroom could be grating. But even his harshest critics would probably concede that the unflagging intensity of his advocacy for his client was an extraordinary feat. When Paoli stood at the dais and began his closing argument, his defense of Jordan Johnson had consumed his life for the previous thirteen months. His complexion was ashen. He needed a haircut. Puffy folds of skin drooped beneath his eyes, and his jowls sagged heavily over his starched collar and the knot of his yellow tie. He looked like he hadn’t slept for a year.

Despite his exhaustion, or perhaps because of it, Paoli’s summation was delivered with manic energy. Words flew out of his mouth like panicked bats hurtling from a cave. “Justice needs to be fought for,” Paoli declared. “The truth needs to be fought for. The truth does not require an explanation. The truth does not require an expert from Boston.” Jordan Johnson “has completely denied” Cecilia Washburn’s account, Paoli asserted. The prosecutors “stand here and take a big chunk of their opening to talk to you about the expert from Boston who’s here to be educational,…and how he’s more smarter [sic] than all of us. And then, on the other hand, they even encouraged you to use your common sense, except when it comes to the Boston expert. He knows better. I thought it was condescending and presumptuous for them to say to you, ‘He knows so much more about this, so you need to listen to him.’ I don’t buy that. The judge instructed you to use your common sense, and I hope you will, because common sense is what’s needed in this case.”

Paoli’s assault on Dr. David Lisak was relentless: “The Boston expert was needed because there’s so much to explain here. They want to call it counterintuitive.” Ridiculing Lisak’s explanation for why rape victims often failed to flee, or scream, or fight back when they were assaulted, Paoli warned the jury not to be fooled. When people are afraid, he asserted, they run. “That’s common sense. That’s not expert stuff from Boston.”

A few minutes later, Paoli said, “I want to talk to you real quickly about the environment in which we’re trying this case….It’s intense. These people are under intense pressure. And the police are under intense pressure. The Department of Justice is talking to [Missoula County Attorney Fred] Van Valkenburg and his staff….And we know about the police department policy—a special policy that was instituted as a result of political social pressure.” It was the only police policy, Paoli asserted, that deprives people of their constitutional right to due process. “And we all know from civics that that just isn’t right. That’s not what this country is.”

Paoli asked the jury a rhetorical question: “Do you believe Miss Washburn beyond a reasonable doubt? Even the people who know her best doubt her. I’m not being mean,” he said. “I’m just being factual.” Citing the text message in which Cecilia Washburn said, “I think I might have just gotten raped,” Paoli pronounced, “She didn’t know! She did not know!” If Washburn didn’t know whether she’d granted consent, Paoli demanded, how could Jordan Johnson have known whether she’d granted consent? Paoli also brought up Washburn’s passivity during the alleged rape and pointed out, “It’s common sense to talk about the fact that she didn’t scream, she didn’t roll off the bed, she didn’t move in any way.”

To discredit Washburn’s account of how Johnson pinned her on the bed with his forearm across her chest, pulled off her pants, flipped her over, unzipped his own pants, and then penetrated her from behind while holding her forearms down, Paoli produced a life-size cardboard facsimile of Washburn. “This is sixty-eight inches tall,” he told the jury. “That’s her height.” Then he laid the replica of Washburn on the courtroom floor, placed himself on top of it, and demonstrated how it would have been impossible for Johnson to do what she said he’d done—ignoring the fact that the cardboard cutout was flat, whereas both Washburn and Johnson had testified that she was kneeling, with her buttocks raised, when Johnson penetrated her. As Paoli performed this crude reenactment of the alleged rape, Cecilia Washburn and her family watched from the gallery with horror and disgust.

In marked contrast to Washburn, Paoli told the jury, “Jordan Johnson testified to you directly, consistently….She wants to say
that he’s some kind of animal that flips a switch and then does some terrible things. And that’s not the truth….You all saw Jordan….He’s as everyone describes him. He’s quiet. He’s contemplative. He does not seek the spotlight. He does not jump up on the pedestal. He played football. And we gave him the status. He didn’t take it. He played football well, and we gave him the status, all of us. And that’s part of the reason he’s here. High profile. Celebrity. DOJ. That’s why he’s here.”

Paoli asked the jury, once again, to ponder Washburn’s seemingly inexplicable behavior immediately after she was allegedly raped: eating a snack, responding to the text from Brian O’Day with a smiley-face emoticon, and then driving Johnson home without giving any indication that she had just been raped. “This is all the stuff that they need the Boston expert to explain,” Paoli said derisively, “because it doesn’t show this violent encounter at all. Not at all….The truth does not require an explanation. I’m sure my dad told me this one. My dad was a tire salesman.”

“Objection!” prosecutor Suzy Boylan declared. “Your Honor, counsel is testifying again.”

“Sustained,” Judge Townsend agreed.

“I have heard that if you’re explaining, you’re losing,” Paoli continued, unfazed by the interruption. “If you’re constantly having to explain, you don’t have the evidence….And the chief explainer, of course, is the Boston expert.”

As Paoli was concluding his two-hour summation, he asked the jury a rhetorical question: Why would Jordan Johnson rape Cecilia Washburn when he knew her housemate was sitting just outside her bedroom door? Why would he even think of committing such a reckless act, given his high profile in the community, his sterling reputation, and everything he stood to lose? “It doesn’t add up,” Paoli insisted.

AFTER DAVID PAOLI
sat down, prosecutor Joel Thompson took the dais to present the state’s rebuttal statement. “A long time ago,” he told the jury, “people figured out that if you repeat something that isn’t true enough times, then people will start to believe that….Mr.
Paoli comes up here, and he gave you, I submit, an extraordinarily deceptive closing argument, and misrepresented many facts.”

Gesturing toward Cecilia Washburn’s family in the gallery, Thompson noted that Paoli “continues to claim that those people sitting over there with Cecilia, as they sit here today, doubt her story. Absolutely false.” Cecilia’s family, Thompson explained, reacted the same way most other families of rape victims react: with shock, and disbelief, and self-criticism. “That’s exactly what Dr. Lisak explained to you was the science,” Thompson said. “And what’s interesting is, Dr. Lisak becomes ‘the Boston expert,’ ” in Paoli’s derogatory characterization: “He’s other than us….He’s not from here. So we can’t believe him.”

No expert in the world, Thompson testified, would have been credentialed enough to satisfy David Paoli and Kirsten Pabst. “So we got an expert from Boston to come in here. The best. The best to explain to you the truth about the science, because it is counterintuitive and it is paradoxical. And what he told you in this courtroom, ladies and gentlemen, was not his opinion. He was telling you what decades of research have shown.” Lisak provided the jury with the scientific background they needed to understand the evidence, Thompson said, while Paoli and Pabst “firmly staked out territory on the opposite side of scientific research….They have said, ‘Disregard what [Dr. Lisak] told you, because we desperately need to play on your possible ignorance and your possible misunderstanding of rape myths.’ That is not a way we get to the truth, ladies and gentlemen. Manipulating the evidence, misrepresenting the evidence, is not a way we get to the truth.”