Missoula (21 page)

Soon after the meeting got under way, the Huguets told Van Valkenburg that they weren’t happy with the way Donovan was handling things. They said they were glad he was able to deliver a plea deal, but they were concerned that the judge might give Donaldson a lighter sentence than the plea deal recommended if Donovan didn’t go to the mat for Allison at the sentencing hearing, which was scheduled to be held on October 13. “We wanted someone to argue aggressively for the stiffest possible sentence,” Kevin told me, “and we didn’t think Shaun would do that.”

Kevin Huguet started pushing Van Valkenburg’s buttons. “I asked him, ‘Are you guys afraid of Milt or something? Is that what’s going on here?’ All of a sudden Fred’s blood pressure went up, he got red in the face, and he came flying back at me. I hadn’t gone into the meeting consciously intending to get him going, but it worked. By the middle of the meeting he said, ‘You know what? I’ll take over from here. I’ll handle the sentencing hearing.’ ”

“Fred told me I could have anyone in the office I wanted,” Allison said, “but he felt he was the most qualified.”

“Allison didn’t love Fred at all,” Kevin mused. “But he was the biggest stick in the office. Of all the attorneys there, he was clearly the one to choose.”

“In the end,” Allison said, “Fred did a good job for me. But I think that had a lot to do with the
Missoulian
paying so much attention to the case, and the DOJ looking into things. It gave me a lot of leverage. That’s why he was willing to listen to my frustrations with Shaun. If there had been no media coverage, no outside investigations, I don’t think Fred would have even met with me.”

      I
n February 2012, when University of Montana dean of students Charles Couture initiated a disciplinary investigation of quarterback Jordan Johnson for allegedly raping Cecilia Washburn, the case quickly became contentious, because of Johnson’s celebrity status and the scorched-earth tactics that his attorney employed to defend him.

Upon learning that Johnson had been accused of rape, the UM athletic department had arranged for him to be represented by David Paoli, a local lawyer who served on the National Advisory Board for Grizzly Athletics and had attended UM on a football scholarship in the early 1980s. Playing noseguard, Paoli anchored the defensive line for the Griz, earning accolades for his ferocious tackling. But Paoli was no dumb jock. After graduating with honors from the UM School of Law in 1986, he clerked for a federal judge, launched his own law firm in 1992, and eventually developed into a preeminent Montana attorney. In 2011, the Montana Trial Lawyers Association designated Paoli “Trial Lawyer of the Year.”

For many years, Milt Datsopoulos, the attorney who defended Beau Donaldson, had provided expert assistance to numerous Griz athletes who found themselves on the wrong side of the law. But Datsopoulos was seventy-one years old. Jordan Johnson was the most celebrated athlete in the state. Influential people affiliated with the University of Montana apparently believed that fifty-one-year-old David Paoli, who was notoriously pugnacious, would be a better choice to defend Johnson, given the gravity of the allegation against him.

As soon as he was retained by Jordan Johnson, Paoli adopted
extremely aggressive tactics to defend his client, sparing no expense. In the letter from Dean Couture notifying Johnson that he was being investigated by the university, Couture had warned,

you are to have absolutely no contact of any kind, including third party, with Ms. Washburn. Also, this is a highly confidential matter, and you are prohibited from discussing your alleged misconduct with other people. Failure to comply with these directives would result in your immediate dismissal from the University.

On February 15, three days after Johnson received this warning, Paoli phoned UM legal counsel David Aronofsky to raise objections about the no-contact prohibition, arguing that as Johnson’s attorney, he had a legal right to question witnesses. In a follow-up e-mail to Paoli, Aronofsky agreed but urged him to exercise restraint:

You would be meeting your professional obligations to conduct an investigation for your client and the University will allow you to do this with the caveat that contacting the alleged victim directly or through intermediaries would not be appropriate at this time because of the no-contact instructions. I would suggest you consider going a bit cautiously on your investigation until after next Tuesday’s meeting because we may all learn information there which would be useful in whatever future steps are taken.

On February 17, ignoring Aronofsky’s recommendation to wait until after the opposing parties had a chance to discuss the best way to proceed, Paoli hired a private investigator, Mark Fullerton, to observe Cecilia Washburn’s house, make sure she wasn’t on the premises, and then interview her two housemates in order to gather evidence that could be used to cast doubt on her claim that Jordan Johnson raped her. Although hiring private investigators to do this sort of thing is common in criminal rape cases, it had seldom, if ever, been done during a UM adjudication of a Student Conduct Code violation. When Washburn returned home and learned that Fullerton had been there
grilling her housemates about what they recalled about the night of February 4, she became quite upset. It was “frightening,” she later testified, and she felt “violated.”

Later, Cecilia Washburn discovered that David Paoli had also sent investigator Mark Fullerton to the tiny community where she had gone to high school (the population of the entire town was 171) to gather derogatory information about her. There was no mistaking that Paoli intended to mount an extremely aggressive defense of Johnson.

When Washburn realized that a private investigator was snooping into her personal life, she called Dean Couture to express her shock and revulsion. Couture phoned Fullerton and left a message ordering him to “cease and desist” invading Washburn’s privacy. Paoli responded immediately to Couture with a phone message of his own, reminding Couture that he had a right to question witnesses and had, in fact, obtained permission from UM counsel David Aronofsky to contact Washburn’s housemates.

ON FEBRUARY 24
, Dean Couture summoned Jordan Johnson to his office for their first investigatory meeting. Paoli and Aronofsky were also in attendance. According to a legal brief filed by Paoli,

Couture began the meeting and was immediately abrasive and antagonistic. Although the Student Conduct Code indicated that he was required to present the evidence against Mr. [Johnson] and then allow Mr. [Johnson] to respond, [Dean of Students] Couture, to intimidate, commenced the meeting by looking at Mr. [Johnson] and blurted: “did you rape Ms. [Washburn]?”

Paoli would repeat his assertion that Couture was “abrasive and antagonistic” and tried to “intimidate” Johnson throughout the adjudication process. According to Couture’s associates, the dean could indeed be brusque. But attorneys and other individuals who have tangled with Paoli in court, including some who were cross-examined by him on the witness stand, find Paoli’s self-righteous indignation over Couture’s abrasive tone to be more than a little ironic. Almost all of
Paoli’s antagonists, as well as many of his admirers, are in agreement that he has an uncommonly combative disposition and will go to almost any length to win a case. “Overbearing” is a word not infrequently used to describe him. “Bully” is another.

As one lawyer who has sparred with Paoli put it, “Dave was a noseguard for the Griz, and he practices law the same way he played football: He tries to run over whoever is in front of him.” Those familiar with both Paoli and Couture suggest that Couture had no choice but to be aggressive when interacting with Paoli if he hoped to hold his own and be an effective advocate for Cecilia Washburn.

Following the strictures decreed by the U.S. Department of Education in its 2011 Dear Colleague Letter, UM, like every other American college and university, was required to use “the preponderance of evidence” standard as its burden of proof when adjudicating sexual-assault complaints, rather than the “clear and convincing evidence” standard that most universities were using at the time, or the “beyond a reasonable doubt” standard used in the criminal justice system. To expel a student, in other words, the university had to determine that just 51 percent of the credible evidence indicated that the accused had committed the offense. The purpose of the lower burden of proof was to make it harder for students to get away with rape—a crime the U.S. Department of Education had determined was occurring far too frequently on American campuses.

Two months before Jordan Johnson allegedly raped Cecilia Washburn, the University Court had relied on the “preponderance of evidence” standard to find Calvin Smith guilty of rape and expel him. But the Dear Colleague Letter had been issued less than six months before Smith raped Kaitlynn Kelly, and even though UM administrators used the lower burden of proof in their case against Smith, they were tardy in revising the UM Student Conduct Code to reflect the new standard.

On February 24, 2012, during Dean Couture’s first meeting with Jordan Johnson and David Paoli, Johnson’s counsel, Paoli made this oversight the central thrust of Johnson’s defense, noting that the burden of proof specified in the Student Conduct Code, as it appeared at the time, was still the old “clear and convincing” standard that had been in place before the Dear Colleague Letter. Therefore, Paoli
argued, the older, more stringent standard must be used for the adjudication of Johnson’s case.

Couture and Aronofsky countered that the university simply hadn’t yet gotten around to updating the Student Conduct Code to reflect the new standard—an irrelevant technicality that should not be allowed to let Johnson get away with rape. And this assertion—that the quest for truth and justice should trump procedural nitpicking—became a pivotal issue in the determination of Johnson’s case. Paoli emphatically disagreed, and he railed against the university’s failure to follow the letter of the Student Conduct Code, as published. He also railed against many other aspects of the way the university handled Johnson’s disciplinary proceedings.

Not surprisingly, lawyers hired to defend students in university rape cases typically despise constraints like those imposed on their profession by the University of Montana, which forbids legal counsel to speak on behalf of their clients or interrogate witnesses during the proceedings. UM’s deliberate rejection of the fundamental rules of criminal law enraged Paoli, and he frequently berated Couture and other university officials for their refusal to grant Johnson basic rights guaranteed by the criminal justice system. For his part, Dean Couture reminded Paoli that the university’s investigation of his client was a disciplinary proceeding, not a criminal investigation, so it was entirely proper for the university to establish its own rules.

Three months earlier, when Couture had admonished attorney Josh Van de Wetering not to speak during the university’s adjudication of the Calvin Smith case, Van de Wetering had reluctantly abided. But abiding is not in Paoli’s nature. It was simply impossible for him to accept that the university had a legal right to refuse to let him speak or raise objections during the proceedings. As a consequence, Paoli often disregarded the policy and indignantly demanded to be heard. Couture, in turn, responded to these outbursts by commanding Paoli to keep his mouth shut. At one point during their February 24 meeting, according to Paoli, UM counsel David Aronofsky actually ordered him “to shut up.” All of which prompted Paoli to protest more forcefully than ever that Couture and Aronofsky were demonstrating a “lack of impartiality.”

Couture, however, wasn’t supposed to be impartial. His job was
to function not as a dispassionate judge but, rather, as the university’s prosecutor. When Cecilia Washburn filed her complaint with the university accusing Johnson of rape, it was Couture’s responsibility as dean of students to determine if there was probable cause to pursue a university investigation, just as it was the Missoula County attorney’s responsibility to determine if probable cause existed to pursue criminal charges against Beau Donaldson in the Allison Huguet case. After Couture’s initial investigation led him to decide that there was ample reason to believe that Jordan Johnson had raped Cecilia Washburn, Couture was expected to assemble a case for Johnson’s expulsion from UM, just as Deputy County Attorney Shaun Donovan was expected to assemble and present a case for Donaldson’s criminal conviction.

A second meeting between David Paoli, Jordan Johnson, Charles Couture, and David Aronofsky was held on March 9. During this meeting, Couture told Paoli and Johnson that he “was leaning towards” a finding consistent with Washburn’s allegation that Johnson had raped her.

Aronofsky agreed to provide Paoli with copies of the investigatory file Dean Couture had assembled about the case. Upon reviewing the file, Paoli found statements from witnesses supporting Washburn that, in Paoli’s opinion, clearly showed Couture’s “lack of impartiality and predetermination” of Jordan Johnson’s guilt. For example, Paoli was irked that a “witness lauded DOS Couture on how ‘extremely understanding and compassionate’ he was.” Paoli saw further proof of egregious bias in a statement in the file from Cecilia Washburn on February 22 in which she noted,

I met with Charles [Couture] to discuss his previous meeting with [Johnson] and [Paoli]. From what I understand, [Johnson pleaded] not guilty to committing the crime and had a very aggressive and entitled nature with Charles. Charles also said that [Paoli] was very standoffish.

It didn’t seem to have occurred to Paoli that showing compassion and understanding to an alleged victim was entirely proper behavior by Couture, or that Washburn’s description of Johnson’s demeanor as “very aggressive and entitled” might have been accurate.

ON MARCH 27
, Charles Couture sent a letter to Jordan Johnson, informing him,

I have found a preponderance of evidence to support the allegation that you raped a fellow student, Ms. Cecilia Washburn, at her apartment on February 4, 2012. My finding is based, in part, on the following evidence:

• Contrary to your repeated assertion, text messages between you and the victim prove you and the victim were more than mere acquaintances

• Your previous conduct in your University residence hall
*
¹

• Your assertion that you and the victim had jointly initiated getting together the night of the rape; a copy of your text message to the victim clearly proves you initiated the meeting…

• The complete and immediate cessation of your friendship with the victim following the night of the rape

• Your failure to attempt to retrieve your watch that you forgot at the victim’s house, despite your assertion that [this] watch had been a present to you from your siste

Appropriate sanction for this type of violent physical assault are:

1. Immediate expulsion from The University of Montana

2. No further access to any University property or University-sponsored activity at any time

You have the opportunity to accept or deny the charge of having violated the Student Conduct Code and/or accept or not
accept the sanctions. If you deny the charge and/or not accept the sanctions, you have the right to an administrative conference with the Vice President of Student Affairs, or her designee, and a hearing by the University Court.

Jordan Johnson responded by denying the charge and requesting an administrative conference with Teresa Branch, the vice president of student affairs. That conference was held on April 20; in addition to Branch and Johnson, Paoli, Couture, and Aronofsky were also present. At the beginning of the meeting, Paoli hand-delivered to Branch a packet of reference letters attesting to Johnson’s upstanding character, accompanied by a cover letter in which Paoli reasserted that Johnson had not raped Washburn.