Missoula

by Jon Krakauer

  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.*1 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,*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 fill
ed 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.”

  * * *

  *1 After an eighteen-month investigation, the NCAA forced the football team to vacate their final five wins of the 2011 season; as a consequence, the Grizzlies’ official record has been revised from 11–3 to 6–3. But the sanction had nothing to do with the rape scandal. It was imposed for numerous violations of NCAA rules, the most serious of which was allowing two Griz players, Trumaine Johnson and Gerald Kemp, to receive free legal representation when they were charged with obstructing a peace officer, disorderly conduct, and resisting arrest after police were called to break up a party at Johnson’s apartment. A melee ensued, during which Johnson and Kemp were tased by the cops and thrown in jail. The lawyer who provided the free representation was Darla Keck, a shareholder in Milt Datsopoulos’s law firm.

  *2 pseudonym

  *3 Asserting that an alleged rape victim was moaning seems to be an effective means of persuading police, prosecutors, judges, and/or jurors that the sex was consensual, rather than an act of rape, even though people moan in fear and pain, as well as pleasure. But the “moaning” defense worked for Jordan Johnson, it worked for the four Griz football players accused of raping Kelsey Belnap in 2010, and it worked for Jameis Winston, the Heisman Trophy–winning quarterback for Florida State University, when he was accused of raping a female student in December 2012. Two years later, when Winston was asked during a student conduct hearing “in what manner, verbally or physically,” the female gave consent, he claimed she provided consent by “moaning.” Winston was cleared of misconduct.

  The moaning defense isn’t always successful, however. When Kaitlynn Kelly accused UM student Calvin Smith of raping her in October 2011, Smith said part of the reason he believed Kelly consented to having sex was that “she was moaning,” but the University Court found him guilty of rape, regardless.

  PART SIX

  Aftershocks

  On the playing field, every single mistake a player makes is pointed out and criticized until corrected. By design, on the field of real life, the athlete rarely faces similar accountability….Sadly, and too often with tragic repercussions, athletes don’t distinguish right from wrong because they actually have no idea of what is right and what is wrong. Rules don’t apply. Acceptable standards of behavior don’t apply. Little infractions become bigger ones, and adults turn a blind eye. If someone gets into trouble, the first move is for an authority figure, usually in the form of a coach, to get them out of it.

  When that doesn’t work, whether they’re high school quarterbacks or pro-ball pitchers, one of two things happens. Sometimes, especially at the high school level, the community rallies around the accused, wanting to believe that “boys will be boys.”…We don’t want to admit that in all these stories, it’s not about the individual, or the individual sport, but about the culture we have allowed to grow around them….

  It is in vogue now to blame and condemn athletes. They should be held accountable for their behavior….But we are just as culpable, allowing them to exist in a realm all their own and not caring a bit about what we have turned them into—as long as they bring us victory.

  BUZZ BISSINGER

  “The Boys in the Clubhouse”

  New York Times, October 18, 2014

  CHAPTER TWENTY-NINE

  Just before the Jordan Johnson trial began, the New York Times published an article in which Montana Regent Pat Williams said, “We’ve had sex assaults, vandalism, beatings by football players….The university has recruited thugs for its football team, and this thuggery has got to stop.” Williams was widely denounced for these remarks by Griz fans, who circulated a petition demanding that he be removed from the Board of Regents.

  On March 10, 2013, nine days after Johnson was acquitted, Williams published a guest column in the Missoulian to address the ongoing criticism, and to try to save his job. He wrote,

  We Montanans have always preferred straight talk from those who represent us. My choice of words with the reporter was candid; chosen to illuminate my concern with the actions of outlier, convicted student-athletes whose behavior have [sic] damaged public and personal safety as well as scarred our university….

  For 50 years I have worked to improve and enhance educational opportunities for young people across our state and throughout the nation. As a teacher and a member of the Board of Regents, I will continue to defend our efforts to educate the next generation and form leaders of conscience. If I turned a blind eye to violence in our university communities it would impede these goals.

  A week later, David Paoli responded to Williams with a Missoulian guest column of his own. It made Paoli look like a sore winner:

  Pat Williams is a friend of mine. So, he will understand my advice….

  Williams abused his position as a regent to ignorantly blast University of Montana student-athletes….

  When he was roundly criticized for his bombastic statements, he wrote a guest opinion to explain himself. Pat, when you are explaining, you’re losing….

  More than his offensive language, the timing of Williams’ ambush is more concerning. His quotes ran on Feb. 6 in a New York Times story regarding a highly publicized trial set to begin two days later. His “thugs” and “thuggery” quotes were printed two paragraphs above a discussion of whether the falsely accused could receive a “fair trial amid such controversy.”…

  Montanans expect honest, reasoned judgment and respect from their representatives. Montanans do not expect cheap quotes to the New York Times to develop more frenzy and throw kerosene on an already blazing situation….

  Williams is not a racist. However, his use of the racial epitaphs [sic] “thugs” and “thuggery” are racist. Anyone who has lived in D.C. or Seattle or Berkeley or anywhere else knows very clearly that the use of these words have [sic] serious and hurtful racial overtones. The use of these racial slurs requires an apology.

  Five days after Paoli’s piece ran, the Missoulian published a rejoinder from former Montana Supreme Court justice Terry Trieweiler, one of the most esteemed lawyers in the state:

  Missoula lawyer David Paoli is a friend of mine. So I’m certain he won’t be offended by my opinion of what he characterized as “advice” to Pat Williams….

  Let me preface my remarks by pointing out that I’ve been a college football fan all of my life. Football paid for my college education. And, I’ve been a season-ticket holder to Grizzlies football for many years.

  Still, I’ve been mystified by the reaction of many Grizzlies football fans to Williams’ remarks describing too many of the team’s players as “thugs” and his commitment as a regent to end the “thuggery.”

  Paoli lambasted Williams’ remarks as “ignorant,” “abusive of his position as a regent” and unfair to Paoli’s client. He threw in a little race-baiting for good measure, even though the term used by Williams is racially neutral and the offenders he referred to were both black and white.

  It seems to me, on the other hand, that anyone who doesn’t recognize the problems Williams described wouldn’t be fit to serve as a regent and that the real “ignorance” is demonstrated by attacking the messenger for his unpleasant message.

  It might be helpful to review the conduct over the past five years that he accurately characterized as “thuggery.”

  It includes a fatal shooting by Jimmy Wilson and his teammate
Qwenton Freeman’s refusal to participate in the investigation, even though he witnessed it, following which Wilson was found not guilty and they were welcomed back to the team; Freeman’s numerous convictions for acts of violence and ultimate dismissal from the team; Freeman’s armed burglary with the assistance of several other players; the brutal assaults on another student on campus by two other players; Trumaine Johnson’s and Andrew Swink’s violent assault on another student; Johnson’s and Gerald Kemp’s obstruction of a peace officer; Beau Donaldson’s rape of a female companion; several players’ alleged involvement in a gang rape; the University of Montana president’s admission, following an independent investigation, that a number of players had been involved in sexual assaults; and the recent brutal beating and robbery of a convenience store clerk by a former player with a history of other violent and illegal conduct. Throw in several other violent assaults on women by some of these same players.

  During the same period of time, seven players have been arrested for driving under the influence of alcohol or drugs—a couple of them repeat offenders.

  As a result of this history, the university is being investigated by the NCAA, the Justice Department, and the U.S. Department of Education’s Office of Civil Rights.

  If people who kill others, rape others, beat others, and burglarize and rob others aren’t thugs, then what are they? And, how much thuggery does it take before a member of the Board of Regents is free to say we need to do something about it?

  While it is true that Paoli’s client was recently acquitted of the charges against him, Paoli takes himself and the acquittal too seriously when he infers that the acquittal of one player vindicates the entire program, or makes Williams’ comments any less true….

  As alarming as this five-year pattern of conduct should be, the greater long-term problem will come from the culture of entitlement that causes players here, and elsewhere, to think they are unaccountable for their conduct because of their athletic ability and the knee-jerk reaction of program supporters, including Paoli, to anyone who questions where and how things might have gone wrong.