Missoula (28 page)

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s defense counsel for Jordan Johnson, Kirsten Pabst and David Paoli had a professional responsibility to sow doubt about Cecilia Washburn’s credibility at every opportunity. Throughout the trial, to fulfill this duty, Pabst and Paoli made misleading statements about Washburn without compunction.

Montana lawyers are required to adhere to the Montana Rules of Professional Conduct, which are based on the American Bar Association Model Rules of Professional Conduct. According to both the Montana Rules and the ABA Model Rules, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” It’s nevertheless common for lawyers to deliberately make untrue statements in court, and they usually get away with it, especially defense counsel.

“There’s a double standard,” Rebecca Roe told me. According to Roe, who supervised the sexual-assault unit in the King County Prosecuting Attorney’s Office for eleven years, “Judges tend to hold prosecutors to a higher level of truthfulness than defense counsel.” Furthermore, she said, “If prosecutors make statements in court that aren’t true, and the defendant is convicted, the defense can appeal and get the conviction overturned. But there is no corresponding deterrent when defense lawyers make untrue statements, because if a defendant is acquitted, the prosecution can’t appeal.”

Seemingly by design, the American legal system encourages defense counsel to be as mendacious as possible. As Monroe Freedman, a legal ethicist and former dean of Hofstra Law School, has written, “The attorney is obligated to attack, if he can, the reliability
or credibility of an opposing witness whom he knows to be truthful.” It’s an essential component of our adversarial system of justice, based on the theory that justice is best achieved not through a third-party investigation directed by an impartial judge but, instead, through vigorous disputation by the interested parties: trial by verbal combat.

The preamble to the ABA Model Rules states, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and the lawyer has an “obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law.”
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Lawyers for each side are expected to fight as hard as they can, with the judge doing little more than acting as a referee to ensure that rules and procedure are followed. Because antagonistic counsel are motivated to present the strongest evidence and advance the most persuasive arguments in support of their respective clients, a fair trial is ensured, the truth will come to light, and the jury will be given a sound basis for rendering a just verdict. That’s the theory.

In reality, the system promotes chicanery, outright deceit, and other egregious misconduct by trial lawyers. As the legal scholar Franklin Strier points out,

[A]lthough we expect attorneys to adhere to the rules of evidence and confine their strategies to the ethical boundaries of the rules, they often bend the rules and stretch the strategies….As a result, trial lawyers ostensibly enjoy a unique privilege in plying their trade: They are largely unanswerable to society for behavior that would be morally questionable elsewhere.

In the adversarial system, it’s more important to follow legal procedure than to speak the truth. Due process trumps honesty and ordinary justice. Trials degenerate into clashes that bring to mind cage fights, characterized by wildly exaggerated claims, highly selective presentation of the facts, and brutal interrogation of witnesses.

The excessive partisanship of the adversarial system becomes especially problematic when the offense being adjudicated is rape, which all but guarantees that lawyers for the accused party will attempt to turn the tables and put the victim on trial. As Judith Lewis Herman, professor of psychiatry at Harvard Medical School, explains in “The Mental Health of Crime Victims,”

Involvement in legal proceedings constitutes a significant emotional stress for even the most robust citizen. For victims of violent crime, who may suffer from psychological trauma as a result of their victimization, involvement in the justice system may compound the original injury….Indeed, if one set out intentionally to design a system for provoking symptoms of posttraumatic stress disorder, it might look very much like a court of law.

The mental health needs of crime victims are often diametrically opposed to the requirements of legal proceedings. Victims need social acknowledgement and support; the court requires them to endure a public challenge to their credibility. Victims need to establish a sense of power and control over their lives; the court requires them to submit to a complex set of rules and procedures that they may not understand, and over which they have no control. Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes-or-no questions that break down any personal attempt to construct a coherent and meaningful narrative. Victims often need to control or limit their exposure to specific reminders of the trauma; the court requires them to relive the experience by directly confronting the perpetrator.

The trial of Jordan began on Friday, February 8, 2013, and ended three weeks later on Friday, March 1. The first of the thirty-five witnesses called to testify was Cecilia Washburn, the victim. Under friendly questioning by Montana Assistant Attorney General Joel Thompson (who was collaborating with the prosecutors in the Missoula County Attorney’s Office because it was such a high-profile
case), Washburn spent more than a day on the stand providing a detailed account of the events described by prosecutor Adam Duerk in his opening statement. When Thompson was finished, the defense was given the opportunity to cross-examine Washburn, and David Paoli’s questions weren’t as genial.

Right away, Paoli attempted to establish that Washburn was vindictive, and her statements unreliable. His first question was “It’s true, is it not, that when I talked to you previously [during a pretrial deposition], you told me that you wanted Jordan to suffer?”

“No,” Washburn replied, prompting Paoli to produce a transcript of the deposition and present it to her on the witness stand.

“You said and believed,” Paoli recited, “that you wanted him to suffer like you believed you have suffered; isn’t that right?”

After reading the transcript, Washburn admitted she’d said that.

A few minutes later, Paoli grilled Washburn about her childhood, trying to establish that she was emotionally unstable. “You have said and you have written that you were bullied in day care; is that right?” he asked.

“Yes,” she replied.

“And you were bullied in junior high school?” he continued.

“Correct.”…

“And you got bullied so bad that you had to go get counseling; is that fair?”

“Yes.”

“And you had anxiety attacks then?”

“Yes.”

“Panic attacks?”

“Yes.”

“Suicidal ideations, then?”

“Yes.”

“And the bullying continued in high school, didn’t it?”

“It fizzled. I mean,…it wasn’t as common as it was in junior high.”

“And in high school there were two girls that bullied you; isn’t that what you told me?”

“Yes.”

“And of course your father would have known about it; isn’t that right?”

“No.”

“Well, your father worked in the school?”

“Yes.”

“Did you tell your father about the bullying?”

“No.”

“Would it surprise you that neither of your parents recall that you were bullied in that period of time?”

“No.”

“It would not surprise you?” Paoli demanded again.

“No,” Washburn answered.

Earlier, under friendly questioning from prosecutor Joel Thompson, Cecilia Washburn had said that she “had never thought in a million years” that she would ever be raped. After reminding her of this statement, Paoli demanded, “But you, in fact, had a very specific dream—a nightmare, frankly—on Christmas 2011, about being raped; isn’t that right?”

“If that’s what the record shows,” Washburn answered, “then yes.”

Paoli showed her a text message she’d sent on December 26, 2011, and then asked, “So this dream you had was about a Grizzly player raping you; isn’t that right?…And it’s not just any football player.”

Cecilia Washburn’s nightmare had been about Trumaine Johnson (no relation to Jordan Johnson), who had played cornerback for the University of Montana, extremely well, and in 2012 was drafted by the St. Louis Rams, and went on to become a star in the National Football League. But in December 2011, a week before Washburn had the dream, Trumaine Johnson was tased and arrested by the Missoula police after brutally beating a man at a party in his apartment following a Griz football game, an incident prominently reported in the Montana news media.

In Washburn’s nightmare, Trumaine hit her over the head and raped her in a van. At the time she had this dream, Trumaine was in fact the roommate of the man who was Washburn’s boyfriend.

THROUGHOUT HIS CROSS-EXAMINATION
of Cecilia Washburn, defense counsel David Paoli aggressively challenged every conceivable inconsistency in her prior testimony. Some of these alleged inconsistencies were potentially damaging. For example, Jordan Johnson claimed that shortly before they had sex, Washburn asked him if he had a condom, and when he said no, according to Johnson, she replied, “It’s okay.” Washburn claimed this conversation never happened. But four months before the trial, when UM Dean Rhondie Voorhees grilled Washburn during Johnson’s appeal of his expulsion from the University of Montana, and Voorhees asked Washburn whether she and Johnson had talked about a condom, Washburn seemed to waffle and didn’t answer the question.

Paoli zeroed in on this. “You and Jordan had a discussion about a condom, didn’t you?” he asked Washburn.

“We did not,” she answered without hesitation.

“You will admit that you have been equivocal in the past about whether you had a discussion about a condom, correct?…And you were equivocal with Dean Rhondie Voorhees…and didn’t have a response, correct?”

“Correct.”

“So now the issue has become important, and you’re clear about whether you had that discussion?”

“Correct.”

Paoli also jumped all over Washburn about inconsistencies that seemed of no consequence. For instance, he tried to make hay out of conflicting accounts about whether Washburn ate anything during the five or ten minutes that elapsed between the alleged rape and driving Johnson home. “You grabbed a snack, didn’t you?” Paoli demanded.

“No,” Washburn said.

“You’re aware that Stephen [Green, Washburn’s housemate] has said you went in and grabbed a snack?”

“Yes.”

“And what do you make of…what Stephen’s testimony is versus your testimony?”

“I can’t make comments on Stephen’s testimony. That’s his testimony. But I didn’t grab a snack.”…

“He doesn’t have any reason to make that up, does he?” Paoli continued.

“No.”

“He’s just telling what he thought he saw you doing in the kitchen, right?”

“Right.”

Referring to a diagram, Paoli asked, “And it’s true, is it not, that in this kitchen, you keep your food down here towards the dining room?”

“Yes,” Washburn replied. “Right next to the sink.”

Paoli spent even more time haranguing Washburn about whether she had contacted a lawyer to discuss filing a civil claim against Johnson. After confirming that she had indeed contacted a lawyer, Paoli asked, “This is a lawyer in Atlanta who files lawsuits for money; isn’t that right?”

“I don’t know what she does,” Washburn replied.

“Did you look at her website?…Did you look at her many victories and the money that she’s earned for clients?…Did it include jury verdicts for money?”
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“No, it did not.”…

“Have you engaged the services or retained this Atlanta law firm?”

“No, I have not.”

“Have they told you to get back to them after this is all over?”

“No, they have not.”…

“Are you planning on filing a lawsuit against Jordan Johnson?”

“No.”

“Are you planning on filing a lawsuit against the University of Montana?”

“No.”

“Are you planning on filing a lawsuit against the Grizzly football team?”

“No,” Washburn answered.

EVENTUALLY PAOLI GOT
around to challenging Washburn’s claim that she’d made it explicitly clear to Jordan Johnson that she did not want to have sex on the night he allegedly raped her. Brandishing a document titled “Cecilia Washburn Reflection,” which she’d written three or four days after the incident, Paoli asked, “You gave a lot of thought to this, didn’t you?”

“I did,” Washburn answered.

Paoli handed Washburn a copy of the document and asked, “So in your reflections, you wrote that you thought this whole situation was your fault, right?…So what were the mixed signals that you gave that made you think this was all your fault?”

“Maybe it was the clothes I was wearing, us making out, or me taking off my shirt that made Jordan think I wanted to have sex,” Washburn answered.

“And then you regret not having called to Stephen [Green, her friend and housemate] or done more to resist Jordan?” Paoli continued.

“I should have screamed out to my roommate in the living room,” she answered, “or used more force to resist him, yes.”

Paoli handed Washburn a copy of a Facebook message she sent to a friend in Great Falls named Bryan Court, eighteen days after the alleged rape. “And you express again in this document that all you can think about is how you could have prevented it, right?” Paoli asked.

“Yes,” Washburn answered.

“And how you should have tried harder, right?”

“Yes.”…

“And then your thoughts lead you to say, ‘And now I keep thinking, well, maybe I did want it, and that’s why I didn’t punch him or kick him or bite him?’ ”