Missoula (33 page)

Joel Thompson pointed out that he sometimes prosecutes homicide cases. “A body speaks of how it was killed,” he said. “A drop of blood speaks of who left it.” In similar fashion, he said, the bruises and red marks on Cecilia Washburn’s body “speak to whose account is true.” The defense was trying to pressure the jury into believing otherwise, he argued, because “the defendant’s life hangs in the balance.”

Thompson cautioned the jury members against acquitting Jordan Johnson because they might be inclined to think, “The damage is done. I don’t want to ruin two lives—one is already ruined, let’s not ruin another.” Such reasoning would be wrong, Thompson said,
because “considerations of sentencing or consequences outside of your decision [about guilt or innocence] are not in any way relevant to what is true. And we don’t look to you as much for justice…as we look to you for truth….Your only responsibility is rendering a true verdict. The harm done in this case was not done in this trial. It was done in the rape of Cecilia Washburn.”

To determine the truth, Thompson observed, “We have to rely on the evidence….And the best evidence is that Cecilia Washburn went in that room one person [on the night of February 4, 2012] and came out a very different person….It’s been suggested that maybe this was just a lie [by Washburn] that got out of control. Well, if that’s true, it would have to have been a lie concocted within…three to five minutes,” because she sent that troubling text (“Omg, I think I might have just gotten raped. he kept pushing and pushing and I said no but he wouldn’t listen”) less than five minutes after the rape allegedly occurred.

“So what you’re finally left with, ladies and gentlemen, is two stories of what happened in that room,” Thompson told the jury. According to one of these competing narratives, a young man in a relationship with another woman texts Cecilia Washburn because he wants to get laid and he thinks she is eager to have sex with him. “It’s Saturday night,” Thompson explains. “He’s had a few beers and his buddy says to him, ‘Get ’er done.’ ”

Cecilia Washburn, “on the other hand, is tired, unshowered, sleeping, takes no time to clean herself up, dress nice, or put on makeup.” Although she hoped to have sex with Johnson at some point in the future, she did not want to have intercourse with him that particular evening. “He thought he was having sex that night,” Thompson pronounced, but “she did not.” When Washburn made this explicitly clear to Johnson, he ignored her and raped her. “To the defendant, it was normal. No words, no talking afterwards. He goes into the bathroom, leaves the house, and the next words he utters to her are ‘Well, thanks,’ when she drops him off. He admits…her text message to Stephen Green doesn’t make sense. And he’s right: It doesn’t make sense.” Nor does the emotional distress witnessed afterward by Green, Thompson added, because Washburn’s reaction is inexplicable if she wasn’t raped.

Cecilia Washburn’s version of what happened, Joel Thompson continued, “involves the defendant changing, going from gentle and trusted to forceful and scary in a heartbeat. She’s in a secure, safe place, with a trusted person who would never harm her.” But then the defendant starts using force to get what he came for. “She says no,” Johnson continued. “She resists. She puts her knees up. She pushes him away.”

But Johnson was determined to have sex that night, so he raped her. And the trauma of that rape, Thompson said, “was written all over her the minute she left the room.”

The defense attorneys, Thompson said, “would have you believe that this unrebutted emotional reaction was either caused by a lack of snuggling or a realization that the man…wasn’t going to be her boyfriend.” But Cecilia Washburn was not in fact a woman scorned, “or hiding a pregnancy, or trying to get advantage in a child custody case, or any of the other reasons we might think someone would make a false allegation. She has no motive to endure what she and her family have endured in this last year. And what they continue to endure. She will not leave this courtroom all better. You saw it on her. You saw it on her friends and her family.

“Don’t let yourself be confused,” Thompson implored. “Attorneys know that confusion is the next of kin to doubt, because it feels the same way.” But the confusion the defense worked so hard to create “is not doubt,” he said. Cecilia Washburn’s only motive for reporting that Jordan Johnson raped her was to hold him accountable for what he did and to prevent him from doing it to anyone else. “That,” Thompson told the jury, “is your motive.”

      P
rosecutor Joel Thompson finished his rebuttal at 1:08 p.m. Friday afternoon, prompting Judge Karen Townsend to tell the twelve jurors to gather up their notebooks, head for the jury room, and start deliberating. As the courtroom emptied, Jordan Johnson’s father leaned over the gallery railing and embraced his son.

Just after 3:30, an announcement was made that a verdict had been reached, and the people milling around the courthouse hurried back to the courtroom. For a jury to arrive at a verdict in less than two and a half hours after such a long, complex trial was highly unusual, and it took almost everyone by surprise. Because few had anticipated that the jury would finish deliberating so quickly, and most of the spectators had left the courthouse to have lunch, when Judge Townsend called the court back to order, the audience in the gallery was only about a third as large as the audience for the closing arguments. Johnson sat down at the defense counsel’s table, between David Paoli and Kirsten Pabst, betraying no emotion. Neither Cecilia Washburn nor any of her family were present to hear the jury’s decision.

A little before 4:00, the jury forewoman handed the verdict to the bailiff, who read it to the court: “We the jury, duly empanelled and sworn to try the issues in the above-entitled cause, enter the following unanimous verdict: To the charge of sexual intercourse without consent: We the jury, all of our number, find the defendant, Jordan Todd Johnson, not guilty.”

Raucous cheering filled the courtroom. Johnson, Paoli, and Pabst
burst into tears and embraced. The
Missoulian
Twitter feed erupted with commentary, almost all of it expressing support for Johnson, Paoli, and Pabst and/or berating Cecilia Washburn:

INNOCENT! I would love for the accusers name to be released and plastered everywhere like Jordan’s was

Justice was done today on a case that never should have gone to trial.

Paoli is a damn good lawyer, justice has been served

Hopefully UM will stop getting such a bad rep now.

@egrizfans: Jordan Johnson found Not Guilty…In related news, Gwen [Florio] now taking applications for a new scapegoat.

Missoula loves you Jordy!!!! We have been behind you the entire time!

Now sue her for every last dollar…#Civil retribution

Women who falsely accuse men of rape should be thrown in prison.

Glad it’s over, happy he was found not guilty. Hope he comes back to play Griz football again. A big speed bump in his life.

So glad Johnson was found not guilty! That girl seemed like nothing but an attention seeker

Even if the UM apologized and offered to re-instate JJ, I don’t see how he could possibly continue at the UM…#freeagent

JOHNSON HAD BEEN
suspended from the University of Montana football team on July 31, 2012, and did not practice or play for the Grizzlies for the entire 2012 season. Immediately after the trial, he
appealed his suspension, and on Tuesday, March 5, 2013, the university announced that he had been reinstated to the team, “effective immediately.” Most of Missoula was jubilant that he would be back on the field when the 2013 season commenced, in September. In 2011, before he was suspended, Johnson threw for 2,400 yards and 21 touchdowns; ran for 506 yards and another 4 touchdowns; and led the Griz to an 11–3 record.
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In 2012, without Johnson, the team’s record was 5–6. It was UM’s first losing season since 1985.

ALTHOUGH MISSOULA COUNTY ATTORNEY
Fred Van Valkenburg didn’t participate in the trial itself, he was in charge of the office responsible for prosecuting the case, and he observed the proceedings from the gallery on the final day. As the courtroom emptied on Friday afternoon, and David Paoli and Kirsten Pabst headed outside to take a victory lap in front of the television cameras that had been set up on the courthouse lawn, Gwen Florio, with notebook in hand, approached Van Valkenburg near the courtroom rail to ask what he thought of the verdict. “The outcome here is a ‘not guilty’ verdict,” Van Valkenburg grumbled. “It is
not
an ‘innocent’ verdict.”

Florio included Van Valkenburg’s comment in an article posted on the
Missoulian
website that evening. Three weeks later, Pabst fired back at her former boss on her personal blog. Van Valkenburg and his prosecutors, she wrote in a 2,400-word jeremiad posted on
Pabstblawg
,

are bitter and have no respect for the jury’s verdict. They will probably never admit that Jordan is innocent, that their decision to charge the case was premature and wrong.

Pabst claimed in this blog post that the Missoula County Attorney’s Office decided to prosecute a case that lacked legal merit because of the intense pressure Van Valkenburg was under from Department of Justice investigators; he wanted to send a message that Missoula prosecutors had compassion for rape victims:

I would venture a guess that the next time the Missoula County Attorney’s Office is called upon to decide whether questionable charges should be filed, the name Jordan Johnson will ring in their ears. I hope that prior to sending a message to the world, they will, at the very least, review the available evidence; that they will consider the permanent ramifications…on all involved; that they will be cognizant of the personal and financial costs associated with the decision; and that they will remember that, on occasion, people are untruthful about abuse.

As it turns out, insights about the verdict offered by Joanne Fargo,
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²
one of the seven women on the jury, suggest that Cecilia Washburn might indeed have been telling the truth about what Jordan Johnson did to her. “Ms. Washburn could have been raped,” Fargo told me nineteen months after the trial. “The evidence presented by the prosecution from the rape center Ms. Washburn went to for evaluation was convincing to me.” Fargo said she found “Ms. Washburn completely credible. She seemed invested in her studies and focused on a career. I did not believe she manufactured her story of vengeance or malice of any kind. She seemed far too intelligent to have attempted to profit by false claims” against Johnson.

“From the testimony presented,” Fargo reflected, “I got the impression [Jordan Johnson] pursued [Cecilia Washburn]. He had called her several times before she agreed for him to come to her residence. She hadn’t prepared for the date. Seems like if she were going to snag the quarterback she would have showered.” If Johnson were anything other “than a cad,” Fargo added, instead of forcing himself on Washburn, he would have “saved” himself for Kelli Froland, the woman he professed wanting to have a serious relationship with.

Even though Fargo believed that Johnson might have raped Washburn, however, she also believed that the jury arrived at the correct verdict. The defense raised reasonable doubts, she said, “about whether Mr. Johnson was aware…the sex was non-consensual,” and the verdict was “based wholly on the letter of the law as instructed by the judge….No one can really be sure Ms. Washburn made her intent clear to him.” According to Fargo, it was hard for the jury “to say in the moment” whether Johnson “took ‘no’ as no. He made a noticeable impression on all in the courtroom when he stated ‘she moaned’ ” while they were having intercourse, which the jury interpreted as a sign that Washburn was enjoying the sexual encounter.
*
³

Fargo said that testimony about the condom was also “a key point in the decision-making process.” Most of the jurors believed Johnson when he testified that Cecilia Washburn asked if he had a condom, Fargo explained: Washburn’s “testimony was ambiguous. The defense made a clear point of that fact. Johnson said he didn’t have a condom. Her response was that was okay,” which jurors understood to be an expression of consent on her part.

There wasn’t unanimous agreement about the verdict, initially. “When the first paper vote was taken” in the jury room, Fargo told me, “there were only three or four people who voted ‘guilty.’ ” But after “additional discussion and a second paper vote,” eleven of the twelve jurors were convinced that Johnson should be acquitted. When the lone holdout for a guilty verdict was eventually swayed, according to Fargo, “the handful of [jurors] questioning her were very respectful of
her opinions. I was convinced she was comfortable with changing her vote through the thoughtful exchange of ideas.”

Even though Paoli and Pabst persuaded the jury to acquit Johnson, Fargo said, “In no shape, way, manner, or form was I comfortable with Mr. Paoli’s or Ms. Pabst’s brand of practicing the law. I would characterize it as bullying….I found it beyond annoying, and I was frequently frustrated it was allowed, ad nauseam. The thing is, they occasionally made a point. It would have been better received without the theatrics.”

Joanne Fargo believed that Johnson probably benefited from the fact that several members of the jury were of a sufficiently advanced age to be mystified by the behavior of modern college students, for whom text messages are the default mode of communicating with one another. “Texting was a foreign concept” to some of her fellow jurors, Fargo observed, so the significance of the text Washburn sent to Stephen Green saying, “Omg, I think I might have just gotten raped” might well have been lost on them. They were baffled about why “she didn’t scream out or run to her friend outside the bedroom,” instead of taking the time to type a message on her phone. Fargo, on the other hand, understood that “texting was Ms. Washburn’s usual form of communication. Texting what had happened to her made sense.”

Serving on the jury was an ordeal, Fargo emphasized. It was “a very long, tedious, and emotion-driven trial” that “taught me a good deal about myself and others. More data received than I could ever envision. I would characterize the bulk of my experience as a nightmare I would not care to repeat….I had prepared myself for the long haul, but wasn’t prepared for the toll it would take on me emotionally and, eventually, physically.” Media coverage of “the trial went nationwide,” she said, “and people I didn’t know suddenly knew me….The courtroom was filled every single day. It was a suffocating crush, at times, and certainly toward the end.

“I felt like I had a target painted on me,” Fargo told me. “People would constantly come up to me and start a conversation—‘I know you are unable to discuss the trial, but’—and then give their opinions. Without exception, everyone leaned toward [Jordan Johnson’s] innocence. Ms. Washburn was always spoken of in the negative. In fact, I
was astounded by the ignorance of acquaintance rape….A very old concept of rape prevails. According to this mind-set, there can only be two precursors to rape: (1) A stranger jumps out from the bushes; (2) There is no rape unless the woman puts up a fight, to the death if necessary.”