by Jon Krakauer
Afterward, Cecilia Washburn was “shaking, scared, and in shock,” Duerk told the jury. She got up and sent the text to Stephen Green, her housemate, saying she thought she’d just been raped. “Green texted her back and said, ‘What are you doing? Get out of there.’…She gets dressed and she does get out of there, which brings us to the point of the story when Stephen Green saw her face.” The jury, Duerk said, would hear Green testify that Washburn was distraught and didn’t want to talk. And when she returned from driving Johnson home, she was hysterical.
Adam Duerk hastily ran through some of the other witnesses the prosecution would be putting on the stand, and what they would be saying. Nurses who examined Washburn the day after the rape would testify that they found erythema (slight bruising) on her chest and lacerations inside her vagina. Friends and psychologists would testify that Washburn was suffering from post-traumatic stress. Dr. David Lisak, characterized by Duerk as “a nationally known expert and professor of psychology from the University of Massachusetts,” would testify “that there is no way to tell who is a rapist. There’s also no normal way to respond to rape. That victims often deny or minimize what they’ve been through. That victims try to make everything appear normal after a rape. That self-blame is common, and while the event is occurring, in the presence of the perceived threat, that victims often freeze.”
As Duerk’s allotted time to speak ran out, he told the jury that what they were being asked to do was difficult, but “ultimately it is up to you to weigh all of the evidence in this matter. It’s up to you to determine the credibility of those witnesses that you hear from.”
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* Kirsten Pabst is congratulating herself here for the many cases she declined to prosecute when she ran the sexual-assault division at the Missoula County Attorney’s Office.
CHAPTER TWENTY-TWO
Kirsten Pabst’s talents come to the fore in a courtroom. She has a knack for charming a jury with her candor and her sly sense of humor, even as she is eviscerating a witness on cross-examination. It was obvious why defense attorney David Paoli had asked her to help him represent Jordan Johnson. Paoli is a force to reckon with, but charm is not one of his attributes.
During the seventeen years Pabst worked as a prosecutor in Missoula and Great Falls, she’d tried and won a lot of cases. She boasts on her website of having “a 99 percent success rate at trial.” But the reason her winning percentage is so high is that she didn’t accept cases for prosecution during those seventeen years unless she was almost certain she would win in court or strong-arm the defendant into copping a plea. According to the investigation of the Missoula County Attorney’s Office by the U.S. Department of Justice, during the final four-plus years of Kirsten Pabst’s tenure running the criminal division of the MCAO, the MCAO prosecuted only 12 percent of the sexual-assault cases involving adult women referred to it by the Missoula Police Department.
Pabst’s phenomenal success rate should therefore be cause for concern, rather than congratulation. As an experienced prosecutor told me, “If you’re winning 99 percent of the time you go to trial, you’re not prosecuting nearly enough of the cases that land on your desk.”
What Pabst’s record actually shows is that she was adept at recognizing what made some rape cases problematic to prosecute. And in the spring of 2012, when she started working as defense counsel for Jordan Johnson, she made good use of that aptitude. Pabst quickly identified Cecilia Washburn’s greatest vulnerabilities, and then exploited them ruthlessly.
It’s not enough to simply disparage the accuser, though. Veteran defense lawyers say that to win a trial, you also need to make the defendant seem likable. Jurors have to have sympathy for a defendant before they will acquit him. Early in her opening statement, therefore, Pabst started singing Jordan Johnson’s praises. “People who know Jordan,” she said, “will tell you he’s different. He’s different than your typical teenager.*1 He’s different than your stereotypical football player….He’s described as shy, quiet, reserved, polite, respectful, and has actually never been to downtown Missoula at night. He’s never been to a tailgate [party].”
In fact, Jordan Johnson, like most college students, had done plenty of partying and excessive drinking, and Pabst knew it. During jury selection the previous day, when Judge Townsend asked prospective jurors if any of them had a professional relationship with Johnson, a man who worked nights as a DJ at a downtown drinking establishment replied that he didn’t think he could be an unbiased juror because Johnson sometimes drank there. During his freshman year at UM, moreover, Johnson had been disciplined by the university for getting drunk and running amok in his dormitory.
But none of Johnson’s previous bad behavior was revealed in the courtroom. Before the trial began, Judge Townsend had ruled that in accordance with the Family Educational Rights and Privacy Act, a law enacted by Congress in 1974 to protect the privacy of students, the prosecution was forbidden to mention anything about Johnson’s campus improprieties, including the University of Montana’s adjudication of the charge that he raped Cecilia Washburn. Pabst was therefore confident that she wouldn’t be challenged about Johnson’s peccadillos, and she continued her characterization of him as a paragon of virtue. “Jordan, by all accounts, including Miss Washburn’s,” Pabst told the jury, “is the opposite of the ignorant and generalized football thug. He’s never been in any kind of trouble with the law.”
Having established that Johnson was an upstanding young man, Pabst devoted the rest of her opening statement to vilifying his accuser. Pabst, who had been a fine arts major before she became a lawyer, painted a misleading portrait of Washburn as a dishonest, insecure, emotionally unstable young woman who desperately craved the status that would be hers if she could ensnare the star quarterback of the Griz as her boyfriend.
Cecilia Washburn was “pretty and articulate, and seemingly self-assured,” Kirsten Pabst told the jury. “However, according to Miss Washburn, she had a rough childhood and described being extensively bullied as a child at her day care, in junior high, and some in high school, to the point where she said she was diagnosed with an anxiety disorder in seventh grade and had to see a counselor to address panic attacks and thoughts of suicide. She started school in Great Falls but had to transfer to [a high school in a very small town] where her father was a teacher, to get away from the bullying.”
Although Washburn first met Jordan Johnson in February 2011, when he was a freshman and she was a sophomore, she didn’t want to have sex with him at the time, Pabst asserted, because Johnson hadn’t become the star of the Grizzly football team yet and “nobody really knew who he was….Jordan and Miss Washburn started texting each other on a friendly basis….They went out on a few dates, as us older people call them. They watched TV, they watched some movies, they went and shared some ice cream, had a couple of make-out sessions as well….One time, while kissing, Jordan attempted to take the relationship to the next level and tried to unbutton her pants. She told him no, and he respected the instruction, [and] stopped….Washburn was not particularly interested in him at this point.”
In Kirsten Pabst’s version of events, however, Cecilia Washburn changed her mind about having sex with Jordan Johnson when he became famous. During the 2011 football season, according to Pabst, Washburn began to regard Johnson as a potential boyfriend, because he’d become the first-string quarterback and “was really taking off and really seeing some success….After a couple of games that fall, Miss Washburn texted Jordan, congratulating him on his good playing.” By the end of December, when the Griz were crowned co-champions of the Big Sky Conference—thanks largely to Johnson’s brilliant performance on the field—he was likely the most popular person in all of Missoula.
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THE NIGHT BEFORE the rape allegedly occurred, Kirsten Pabst told the jury, “Jordan and some of his friends went to the Foresters’ Ball….Miss Washburn was also there. She saw Jordan from across the room and approached him and hugged him. He was with his friends B
o [Tully] and Alex [Bienemann].” According to pretrial statements made by Johnson and Bienemann, Cecilia Washburn wrapped her arm around Johnson, put her mouth to his ear, and said, “Jordy, I would do you anytime.” Pabst didn’t share this infelicitous proposition with the jury, though, because in advance of the trial, Judge Townsend had ordered Jordan Johnson’s defense counsel, David Paoli and Kirsten Pabst, to say nothing about it, citing Montana’s “rape shield law,” which decrees that an accuser’s previous sexual conduct is inadmissible as evidence. Skipping over the incident, Pabst said that Washburn and Johnson drifted apart soon thereafter, and Johnson “didn’t see Miss Washburn again that night except for a hug good-bye.”
Pabst described the exchange of texts the following afternoon that culminated in Jordan Johnson phoning Washburn at 10:45 p.m. and asking her to pick him up at his house. “Jordan will tell you that he considered that he might have sex with her that night,” Pabst said. “He didn’t expect it, but it certainly wasn’t out of the realm of possibilities….He was just going to play it by ear and go with the flow.” Kirsten Pabst’s account of what happened before Johnson and Washburn went into her bedroom wasn’t substantially different from the account provided by prosecutor Adam Duerk in his opening statement. But Pabst’s version of what occurred next was completely at odds with Duerk’s version.
The way Pabst told it, Cecilia Washburn was just as eager to have sex as Jordan Johnson: “She got on top of him, topless, and then they continued to make out. They rolled over so that she was on her back….She had on black stretch pants, and Jordan took them off of her and she lifted her hips a little bit so he could get the waistband down around her waist. Jordan asked her about a condom, because at that point, to him, it became pretty clear what was going to happen. He didn’t have one with him. And she told him, ‘That’s okay.’ They continued to kiss.
“Jordan took off his pants and they had sex in the missionary position for a few minutes,” Pabst continued. “Jordan, extremely excited, thought that he was going to ejaculate, so he pulled out for a second. They changed positions, with him guiding her onto her stomach. She lifted up a little bit again so that he could reenter her from the back. She turned her head back towards him and said in a flirty tone, ‘Oh, you’re bad.’ Her message to Jordan at every turn was that she was willing and she was interested.
“Jordan didn’t last long in this position. He pulled out and ejaculated in his hand, not inside of her. He then asked for a towel so he could clean up the mess. There was no discussion about whether she was satisfied. There was no snuggling. It was a little bit awkward. Not what she had been expecting. Jordan was a little clueless that she had wanted something more. At that point, Miss Washburn started to realize that [this] was not exactly what she had been expecting to happen, either. Suddenly, to her, it seemed like her feelings didn’t matter. And maybe, sadly, they didn’t.”
Making the same assertion she had made to the University of Montana court to explain why she’d refused to prosecute Calvin Smith for raping Kaitlynn Kelly, Pabst declared, “Ladies and gentlemen of the jury, this is a case that’s not about rape, but about a girl’s regret.” Pabst argued that Cecilia Washburn’s disappointment over a sexual encounter that hadn’t lived up to her high expectations was transformed into an accusation of rape by the “brewing storm” of the Missoula rape scandal.
Furthermore, Pabst insisted, the entire scandal, the investigations that accompanied it, and the prosecution of Jordan Johnson all resulted “because of a vocal, disgruntled woman*2 who had claimed to be the victim of a sexual assault, and was extremely unhappy with the way she says she was treated by a police detective….She complained to the chief of police. Her outrage prompted a series of news stories that appeared throughout the first six months of [2012] intimating that the Missoula Police Department and Missoula County Attorney’s Office were mishandling sexual-assault cases.
“The repetitive news stories prompted a federal investigation by the Department of Justice,” Pabst continued, “into whether the police and prosecutor’s office were taking sexual assaults seriously. Meanwhile, the Missoula Police Department, in response to the criticism, announced a new policy on its treatment of victims. It specifically mandated that investigators believe everybody who comes through their doors complaining of a sexual assault, and assured the public that from here on out, it would make every effort to be more sympathetic towards women who have alleged abuse.
“Suddenly, [Cecilia Washburn] was getting a lot of attention from her friends,” Pabst explained to the jury. “Attention from the dean of the pharmacy school….Attention by Dean Charles Couture, the then dean of students; by the Crime Victim Advocate office; by the nurse, [Claire] Francoeur….Miss Washburn got attention by the investigator and by the prosecutor. Her regret was replaced by sympathy, attention, and support, and a little bit of drama, and a little bit of celebrity….Her regret, fueled by drama, became purpose. She received a new public—and important—identity: victim.”
Having provided the jury with Cecilia Washburn’s purported motive for falsely claiming that she was raped by Jordan Johnson, Kirsten Pabst moved on to a new theme. “When the state charges a man with rape,” she said, “it must focus on what [the accused and his accuser] are thinking. Because it’s required to prove beyond a reasonable doubt that, one: The woman didn’t want to have sex; and, two: The man knew that she didn’t want to have sex….We will ask you to keep those two critical questions in mind throughout the entirety of the case. Jordan fully admits that they had sex that night. But Miss Washburn gave him every indication that she was into it. She encouraged him. She participated….If she changed her mind at some point, she did not communicate that to him.”
Pabst repeatedly urged jurors not to believe Washburn: “Her story, at face value, appears sincere. But, ladies and gentlemen…, pay close attention to the layers beneath the surface….When two stories conflict, and someone is charged with a crime, the jury’s task is to drill down into credibility….Do you believe this girl beyond a reasonable doubt? Are you convinced?…Miss Washburn wanted a relationship with the star quarterback. That’s why she gave him sex. She is, perhaps rightfully, angry about that. But the fact that he didn’t give her a relationship does not make what happened that night a crime. It does not make him guilty of rape….We trust that you’ll be able to withstand the political storm, stay steady regardless of any hysteria, and just be fair….‘No’ definitely means no. But, in all fairness, ‘yes’ also means yes.”
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*1 Although Johnson was twenty years old when the trial was held, he was nineteen when he allegedly raped Cecilia Washburn.
*2 Pabst was referring to Kerry Barrett, yet again. The screed Pabst posted on her personal blog on June 19, 2012, blamed Barrett, Kaitlynn Kelly, and reporter Gwen Florio (without naming them) for manufacturing the rape scandal. Now Pabst was blaming Barrett and Florio for unfairly bringing about the prosecution of Jordan Johnson, too.
CHAPTER TWENTY-THREE
As 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 trut
hfulness 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.”*1 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,