Missoula (31 page)

“I did,” she said, explaining that Johnson’s statement corroborated Washburn’s testimony that “she was turned over by Mr. Johnson.” When defense counsel David Paoli cross-examined Detective Brueckner, he asserted that when Cecilia Washburn was on the witness stand nine days earlier, Washburn had testified that “she assisted [Jordan Johnson] in changing positions.”

Brueckner countered that Paoli was misrepresenting Washburn’s words. Washburn had in fact testified that Johnson said, “Turn over, or I’ll make you,” and then she’d said, “And then at that point he grabbed my hips and flipped me over….I just knew I was going to get raped….I did assist him, but it was because I gave up.”

As Detective Brueckner shared Washburn’s testimony with the jury, however, Paoli abruptly cut her off, because he didn’t want the jurors to be reminded of what Washburn actually said. Instead, Paoli wanted to elicit testimony from Brueckner that would support an argument he’d been making for much of that afternoon: that Detective Brueckner had been negligent in her sworn duty to seek exculpatory evidence—that is, evidence that might show Johnson’s innocence—during her investigation of the alleged rape.

Earlier in his cross-examination, Paoli had said, “Detective Brueckner, I know that you take your job seriously. And tell me what the main goal of your job is.”

“To find the truth,” she said.

“And justice?” he asked.

“Yes.”

“How do you do that?”

“I do interviews,” Brueckner answered. “Gather evidence. Try to corroborate the person’s statement or refute it.”

“Try to find exculpatory evidence?”

“Yes.”

“You’re required to be impartial, are you not?”

“Yes.”…

“It would be improper to develop a relationship with the complaining witness, isn’t that correct?” Paoli asked.

“I would need you to define ‘relationship.’…”

“Well, at any time did you know that Miss Washburn was talking to this Atlanta litigation law firm prior to coming in and making her report?…Did you have any idea, or did Claire Francoeur indicate to you in any way, that she was thinking about not reporting to the police until she talked to the Atlanta law firm?…Has Miss Washburn ever told you that she had obtained the services of a law firm out of Atlanta?”

“No,” Brueckner answered.

“Detective Brueckner,” Paoli demanded, “you have been involved in…the Department of Justice investigation of the Missoula Police Department, isn’t that correct?…You have given a statement or been interviewed?…And when did you give that?”

“I don’t know—June, maybe? It was shortly after the [DOJ] announcement to the media,” Brueckner answered.

“So that was…in the midst of your investigation in this case, correct?…Did that [DOJ] interview make an impression on you?”

“Yeah,” Brueckner affirmed. “I thought it was a really positive conversation.”

“And did it cause you to redouble your efforts on this case?”

“No….I had done plenty of work on the case prior to that interview, and it didn’t affect me at all.”

David Paoli interrogated Detective Brueckner in this fashion for an especially long time, intending to demonstrate to the jury that she had developed an improper personal relationship with Washburn, causing Brueckner to shirk her responsibility to dig for evidence that might prove that Johnson had been falsely accused. Quoting Article 10 of the Canons of Police Ethics, Paoli asked, “As a law enforcement officer and a lead detective, you shall be concerned equally in the prosecution of the wrongdoer and the defense of the innocent; isn’t that right?”

“Yes,” she answered.

He wondered how she squared this ethical duty with a police department policy enacted the previous March. The new protocol
required Missoula cops, when initiating a sexual-assault investigation, to believe the victim’s claims until the evidence demonstrated otherwise. “You would agree with me,” Paoli demanded, cloaking his assertion as a question, “that this policy…destroys the objectivity and impartiality [of police investigations], doesn’t it?”

“No,” Brueckner answered, “not at all.”

Riled by her response, Paoli protested, “You can maintain your objectivity and impartiality, even though you’re required…to believe the accusation until it’s proved otherwise?”

“That’s part of the investigatory process: to gather evidence to corroborate or refute somebody’s statement,” Brueckner calmly replied. Missoula Chief of Police Mark Muir drafted the new policy, she explained, “as a result of some issues in the community.”…

“So community pressure caused the new policy to be instituted?” Paoli asked.

“I don’t know about that,” Detective Brueckner answered. “I think it…brought awareness to potential problems.” The new policy was intended to help patrol officers respond better, she explained, by providing them with guidelines for investigating sexual assaults more effectively.

DEFENSE COUNSEL DAVID PAOLI’S
fixation on the new police policy came with a backstory. As his co-counsel, Kirsten Pabst, had mentioned in her opening statement on behalf of Jordan Johnson, eleven days earlier, the new policy had been formulated in response to a pair of
Missoulian
articles Gwen Florio wrote in January 2012 about sexual-assault victims Kerry Barrett and Kaitlynn Kelly and the way the Missoula police handled their cases. Florio’s reporting prompted city councilwoman Cynthia Wolken to invite Chief of Police Mark Muir to participate in an open forum that would give the public an opportunity to ask questions about his department’s response to Missoula’s rape crisis.

When the forum was convened, Muir admitted that the department would benefit from “more definitive sexual-assault procedures” and that “the victim needs to be our priority.” Cops, he said, should treat victims the way the cops themselves “would want to be treated
under the exact same circumstances—to give every victim that same compassion.” And then he pledged that within six weeks he would enact a “better policy with respect to sexual assault.”

After Chief Muir spoke, Kerry Barrett took the microphone to slam both the police and the Missoula County Attorney’s Office for their mishandling of her case and Kaitlynn Kelly’s case, reserving her harshest words for Kirsten Pabst, who was in charge of prosecuting rape cases for the Missoula County Attorney’s Office at the time.

True to his word, Muir put the new police policy into place soon thereafter, on March 19, 2012, which happened to be three days after Cecilia Washburn went to the Missoula police to report that she had been raped by Jordan Johnson. It also happened to be eighteen days after Pabst quit working as a prosecutor to start her own law firm.

After Kirsten Pabst resigned from the Missoula County Attorney’s Office, she joined David Paoli as defense counsel for Jordan Johnson. When Pabst and Paoli blamed Kerry Barrett and Kaitlynn Kelly for the new police policy during Johnson’s trial, and used the new policy as a cudgel to batter Detective Brueckner and her investigation of the alleged rape, it was perhaps a sensible tactic—a potentially effective application of lawyerly artifice. But Pabst and Paoli reacted to the new police policy with a degree of outrage that suggested that Kerry Barrett had gotten under their skin and they considered it a personal affront.

Actually, the question of whether the new police protocol trampled Jordan Johnson’s constitutional rights had already been argued by both sides, and the matter had been resolved by Judge Townsend two weeks before the trial even began. After their initial motion to dismiss the Johnson case had been rejected by Townsend in September 2012, David Paoli and Kirsten Pabst had filed a second motion to dismiss in early January 2013, arguing, “The Missoula Police Department’s policy requiring officers to initiate investigations into sex crimes with the belief that they are true violates the presumption of innocence and due process” and “led to a completely biased investigation” of Jordan Johnson. “The rule in criminal cases is clear,” Pabst asserted, citing a 1957 Montana case,
State v. McLeod:
“Every presumption in favor of the defendant’s innocence shall be indulged until the evidence establishes his guilt beyond a reasonable doubt.”

In a response brief filed by the prosecution, however, Deputy Chief Missoula County Attorney Suzy Boylan exposed glaring flaws in Pabst’s claim, pointing out that Pabst had neglected to mention other important aspects of the new policy,

which require police officers to “obtain the information necessary to determine a crime is being alleged” and “establish whether a crime occurred.”

There is nothing unusual about assuming an initial report of a crime is true and conducting an investigation to determine whether sufficient evidence of a crime exists…for possible prosecution. That is standard procedure whether the crime is a sexual offense, an embezzlement, a robbery, or any other case. The reason for specifically institutionalizing this is the historically skeptical treatment of victims of sexual offenses that has not existed for victims of other types of offenses….Every victim of a crime should be heard and a thorough investigation conducted. The policy merely reflects that notion.

More importantly, the Defendant is asserting…a right he did not have at the investigative stage. The presumption of innocence is not a specifically enumerated constitutional right; it is a doctrine embodied in the right to a fair trial. In other words, it is a
trial right
.

To buttress the prosecution’s argument, Boylan cited a 1979 U.S. Supreme Court case,
Bell v. Wolfish
, and a 1994 military case,
U.S. v. Dickey:

The role of presumption of innocence is often confused by laypersons and courts….The presumption of innocence is a rule of evidence for the courtroom that defines a part of the accused’s due process rights….It does not control the pretrial functioning of law enforcement officials, commanders, or magistrates.

After considering Kirsten Pabst’s motion to dismiss and Suzy Boylan’s response, Judge Karen Townsend wrote,

The Court finds that the Missoula Police Department’s policy…is not in violation of the presumption of innocence. It is not improper for the police to have this policy because, as Dr. David Lisak noted in his expert witness disclosure, the percentage of false [rape] reports is very low. The purpose of an investigation is to look for evidence of a crime as well as evidence of innocence….[I]t is not until the time of trial that the defendant is…entitled to the presumption of innocence….

IT IS HEREBY ORDERED that the Defendant’s Second Motion to Dismiss is DENIED.

So Pabst and David Paoli lost this skirmish. But now that the trial was under way, Judge Townsend’s rejection of Pabst’s motion to dismiss the case was irrelevant. Here in the courtroom, with Detective Connie Brueckner on the witness stand, Paoli was free to argue all over again that the new police policy was unfair. And in order for the prosecution to win the current battle, it wasn’t an erudite judge whom prosecutor Adam Duerk needed to persuade. He had to convince the twelve laypersons seated in the jury box, none of whom had gone to law school, that the new policy did not infringe on Jordan Johnson’s constitutional rights or taint Brueckner’s investigation.

To accomplish this, when Paoli finished his cross-examination for the defense, Duerk handed Detective Brueckner the portion of the new Missoula police policy that had gotten Paoli’s knickers in such a twist and asked her to read it aloud to the court. “A victim’s distress,” she began,

may create an unwillingness or psychological inability to assist in the investigation. Officers and investigators play a significant role in both the victim’s willingness to cooperate in the investigation and ability to cope with the emotional and psychological aftereffects of the crime. Therefore, it is especially important that these cases be handled from a nonjudgmental perspective, so as not to communicate in any way to a victim that the victim is to blame for the crime. Every sex crime
investigation is to be initiated with the belief it is true until evidence demonstrates otherwise.

Duerk pointed out to the jury that the language Paoli found so outrageous was based on guidelines published by the International Association of Chiefs of Police, which recommended that all sexual-assault reports “should be taken as valid unless evidence proves otherwise.”

When Duerk asked Detective Brueckner why the new policy was important, Brueckner answered that it “acknowledges what a sensitive topic this is, and how difficult it is for victims to come forward.” She explained that the policy helped prevent police officers, during their initial contact with rape victims, from derailing the cases by inadvertently alienating the victims and scaring them away. The policy, she declared, “gives the victims a voice in the process.”

Police routinely presume that victims of other crimes, such as burglaries, are telling the truth, Duerk noted. “If you refuse to believe a victim in the beginning of a case,” he asked Brueckner, “would any crime ever get investigated in the first place?”

“No,” she answered.

      B
efore the trial began, defense lawyers David Paoli and Kirsten Pabst submitted a list of twenty-five individuals they intended to call as character witnesses for Jordan Johnson, but Judge Townsend declared that having so many people present evidence of his good character would be a “waste of time” and ruled that only five character witnesses would be allowed to testify. Michael McGowan, who ran a Missoula private equity firm and was the team chaplain for the University of Montana football team, was the first of the five to appear on the witness stand.

McGowan testified that Johnson “participated in all of the services that I offered.” Although McGowan had never attended seminary and did not have a divinity degree, on game days he provided a voluntary chapel thirty minutes before the kickoff. “Many of the players participate,” he explained, but “not all.” He would perform blessings, pray for their injuries to heal, lead the team in prayer before they ran onto the field, and then lead another prayer after the game. In addition, he said, “during the week, I make myself available if someone has an injury or they have some issues they want to discuss.

“My interactions with Jordan Johnson have been always in a group setting,” McGowan acknowledged. “He’s very respectful, unassuming, and a young man of integrity….He’s not a very boisterous or vocal person….He’s very, very cool under pressure.” Johnson, McGowan added, “does not use expletives—I have never heard Jordy actually swear, which is, frankly, unusual.” McGowan marveled over the fact that “Jordan can handle his emotions probably better than I can, which is unique for someone of that age.” In very stressful settings,
McGowan explained, “he’s able to basically rein those in and keep himself contained, which I think is self-control.”

When David Paoli asked if McGowan had ever observed Jordan Johnson acting entitled, McGowan replied, “I have not seen that.”

“How about antisocial?” Paoli asked.

“I have not seen that.”

“Self-absorbed?”

“No.”

“Hypermasculine?”

“No….That’s the antithesis of his character….He doesn’t draw attention to himself, in a group or individual setting, from my observation,” McGowan testified.

“Is he narcissistic?” Paoli asked.

“No,” McGowan answered.

A moment later, prosecutor Suzy Boylan began her cross-examination by asking Mike McGowan if he knew the scientific definition of the terms “ ‘antisocial,’ ‘hypermasculine,’ and ‘narcissistic,’…or are you testifying just based on sort of your common understanding of those words?”

“Common understanding,” he admitted.

Referring to McGowan’s role as a volunteer chaplain for the Griz football team, Boylan asked, “You don’t spend any time alone with the players; is that right?”

“I have really no need to,” McGowan answered.

“And you therefore haven’t spent any time alone with the defendant, right?”

“I have spent time in a group setting with him—for instance, sitting on an airplane or at a meal—but never a one-on-one setting.”

“And you never talk to him about his love life, correct?”

“No.”

“And…he hasn’t confided anything to you?”

“No he hasn’t.”…

“You gave us some pretty nice attributes of the defendant. But you would agree that someone with those attributes could still do something bad or wrong, right?” Boylan asked.

“Well, I gave you my observations,” McGowan answered.

“Right,” Boylan said. “But when we spoke to you on the phone in
your pretrial interview,…did you tell us that you’re not saying that someone with those attributes—meaning the positive attributes you just described—can’t do something bad?”

“That is what I said.”

Boylan’s cross-examination was unexpectedly effective. It served as a provocative reminder that even individuals we admire can have skeletons in their closets.

AT 4:10 IN
the afternoon, after twenty-seven minutes of testimony, Mike McGowan was excused, and the most highly anticipated witness of the entire trial took the witness stand: the defendant, Jordan Johnson, wearing a pale blue, button-down shirt with an open collar. Defense counsel Kirsten Pabst began by asking him about his family. Johnson described growing up with his parents and an older sister in Coburg, Oregon, a tiny community beside the Willamette River, just outside of Eugene. He spoke about his relationship with his father, Marty—a math teacher and coach—as “special….I was lucky enough to have him as my football coach in high school football. I think we are a lot closer than most fathers and sons.” When Pabst asked Johnson what activities he did with his mother, he replied that mostly they “just spend time together. She helps me when I have to find presents for people. She goes shopping for me.”

“Is it fair to say you’re very close?” Pabst asked.

“Yes,” Johnson answered.

“Your whole family is pretty close?”

“Very,” he said in an emotional voice, momentarily losing his composure.

As Jordan Johnson testified, he revealed himself to be taciturn and self-possessed, confirming what Mike McGowan had said about him. In answering Pabst’s questions, Johnson seldom said more than yes or no, and he almost never uttered more than a few words at a time. His reticence left space for others to imagine whatever traits they wished to see in him. At times he seemed cold and somewhat aloof, but it was easy to like Johnson, and hard not to feel sorry that he was in this predicament.

“Do you get easily embarrassed?” Pabst asked Johnson.

“Yeah,” he answered.

“Have you always been like this since you were a kid?”

“Yes.”

“Are you more talkative now than you were when you were little?”

“No.”

Just before 5:00, after Johnson had spent just forty-five minutes on the stand, the court was adjourned for the evening, and Judge Townsend reminded everyone that there would be no proceedings the next day, because the trial was in recess every Tuesday in order to allow Townsend to take care of other court business.

When the trial reconvened on Wednesday morning, February 27, 2013, Townsend announced that Jordan Johnson’s testimony would be interrupted briefly so that a character witness—Rudy Herr, a pastor who’d flown from Oregon to testify on Johnson’s behalf—could finish his testimony in time to catch a plane home. Herr had been Johnson’s youth pastor and the coach of his ninth-grade football team; he had known Johnson since Johnson was five years old. Herr stated that he’d “studied the Bible with Johnson” and that his son was one of Johnson’s childhood friends.

Rudy Herr told the jury that despite Johnson’s impressive accomplishments as a football player, “he doesn’t carry himself like he’s the greatest thing to ever walk the earth.” Johnson was honest, truthful, “and has incredible self-control,” Herr testified, echoing what almost everyone else had said about Johnson’s ability to remain calm and perform well when the stakes were high.

Under cross-examination by prosecutor Joel Thompson, Herr acknowledged that Jordan Johnson had told him about the rape accusation during a short conversation the previous summer, and had said the sex was consensual. Thompson asked Pastor Herr if consensual sex without a condom was morally acceptable to him. “I was disappointed,” Herr admitted.

SIXTEEN MINUTES AFTER
taking the stand, Rudy Herr was excused, and Jordan Johnson resumed his testimony. Defense counsel Kirsten
Pabst began by asking him, “What was your impression of Miss Washburn?”

Johnson answered, “That she was a really nice, a smart girl.”

“Did you like her?” Pabst asked.

“I liked her as a person. I didn’t like her as, like, a girlfriend type like,” he replied.

“Do you think she liked you?”

“Yes.”

Pabst asked Johnson to describe what happened on February 4, 2012, starting from the time he woke up, and he gave an account of what transpired over the fourteen hours that followed. Most of the details were in accord with the account Cecilia Washburn had provided to the jury two weeks earlier, and Johnson answered Pabst’s questions in the assured, practiced manner of someone who had already told this story numerous times during the University of Montana disciplinary investigation and the criminal investigation leading up to this trial. Washburn’s testimony had seemed equally well rehearsed, for the same reason.

But if their stories were much the same, they couldn’t have been more at odds in describing what happened between approximately 11:20 and 11:30 on the night of February 4, when Johnson and Washburn were fooling around in her bedroom. Johnson’s account began to diverge sharply from Washburn’s at the point just after he’d pulled her shirt off, with her permission, as they were lying on their sides, face-to-face. According to Johnson, “We were still kissing, and then I take her pants off.”

“How did you do that?” Pabst asked.

“She arched up a little bit to help me get them off,” he explained.

“Did she show any reluctance at that point?”

“No.”

“Did you touch her anywhere?”

“Yeah, in her genital area.”

“Over the clothes or under the clothes?”

“It was when she had underwear, just underwear, on. [I touched her] on top and underneath.”…

“How did she react to that?”

“She liked it.”

“And how do you know?”

“Because she wasn’t resisting in any way and she was still kissing me.”…

“At any point, did you take off her bra?”

“Yes.”…

“Did she seem interested in that?”

“Yes.”

“After you took off her bra, did you touch her…breasts at all?”

“No.”

“Was there a point where she touched you?”

“I don’t remember.”

“You don’t remember her touching your crotch?”

“No.”

“At some point did you have a discussion with her?”…

“She asked if I brought a condom,” Johnson replied, “but that was after we were both naked.”…

“So then what happened?” Pabst asked.

“Then I got on top of her and she asked me if I had a condom and I said no. And she said ‘It’s okay.’ ”

“So then what did you do?”

“We had sex.”

“In what position?”

“Missionary.”…

“And did she show any reluctance when you were having sex in this position?”

“No. If she would have, I would have stopped.”

“Did she seem upset during any of this?”

“No.”

“How long were you having sex with her in that position?”

“Probably two or three minutes.”

“And then what happened?”

“Then I pulled out.”

“Why did you pull out?”

“Because I thought I was going to ejaculate.”

“What did you do after that?”

“I didn’t ejaculate, and we changed positions,” Jordan testified. “I started to turn her over, and she knew what I was doing, and then she said, ‘Oh, you’re bad,’ in a kind of giggling tone.”…

“So did she turn around and look at you?” Pabst asked.

“Yes.”

“And what did she say?”

“ ‘Oh, you’re bad.’ ”

“In a kind of teasing voice?”

“Yes.”

“And what did you take that to mean?”

“That she liked it….Then we had sex in that position for about the same amount of time.”

“And did you think she was into it?”

“Yes….She was moaning.”…

“Was she lubricated?”

“Yes.”…

“And what did you do?”

“I pulled out and ejaculated into my hand and on the bed.”

“So how long did the total sex part of it last?”

“Five minutes.”

“And at what point did she say no?”

“She never said no.”

“How do you know that?”

“Because she didn’t. I would have heard her, and I would have listened to her, and I would have stopped,” Johnson said.

“Do you know what she was thinking?” Pabst asked.

“No.”…

“Did she ever fight you off?”

“No.”

“Did she ever push at you?”

“No.”

“Did you tear her pants off?”

“No.”

“Did you grab her hips?”

“No.”

“Do you think she had an orgasm?”

“I don’t think so.”

“Why not?”

“I honestly have no idea, but that’s just my guess.”

“After you pulled out and you said you ejaculated in your hand, what did you do after that?”

“I asked her if she had something to clean it up with….She grabbed the hand towel.”…

“And why did you want to clean it up?”

“Because I didn’t want it on the bed or on my hand.” According to Johnson, Washburn got out of bed “pretty much right after” he asked her for the towel.

“Did you ask her then to come back onto the bed to snuggle with you?” Pabst inquired.

“No,” Johnson answered.

“Cuddle?”

“No.”

“Did you kiss afterwards?”

“No.”

“Did you say anything to her like ‘That was great’?”

“No.”

“Why not, Jordan?”

“I don’t know. I just didn’t.”

“What was going on in your head at that point, after you ejaculated?”

“Well, I asked her for something to clean it up with, and as I was cleaning it up, she started to put on her clothes, and so I put on my clothes, and then I went into the bathroom, because I had to go pee.”

While he was in the bathroom, at 11:41 p.m., Cecilia Washburn sent the much-discussed text to her housemate Stephen Green indicating that she’d just been raped. Kirsten Pabst, not surprisingly, made no mention of this text as she questioned Jordan Johnson. She did, however, ask Johnson to describe what happened after Washburn left the bedroom. He said, “I put on the rest of my clothes, my shoes, and walked out past Stephen Green and got in the car with Cecilia.”

“Did Cecilia seem upset at all?” Pabst asked.

Johnson answered, “No.”…

“So what’s going on in your head?”

“I was kind of starting to think about Kelli [Froland], in that I
didn’t want her to know that I had sex with another girl….Because I really liked Kelli.”…

“At the point where you got into the car for Cecilia to give you a ride home,” Pabst asked, “did you anticipate a continued friendship with [Cecilia]?”