by Jon Krakauer
That evening, Hillary McLaughlin found herself in an unfamiliar state of mind: She wasn’t anxious. She decided to share this wonderful development with Allison Huguet, with whom she had never previously communicated. “I texted Allison,” she said. “I told her it was the first time in four years I had felt at peace. Until that moment, I hadn’t realized how much my life had been affected by Beau attacking me.” Testifying against Donaldson had been incredibly stressful for McLaughlin, she acknowledged: “I think the worst part was having to appear in front of everybody and say, ‘My name is Hillary McLaughlin,’ and then start telling my story. But now I’m so glad I did it.” McLaughlin was silent for a moment. She glanced down at her hands, then looked up with a pained expression and told me, “I think back—and Allison tells me not to do this—but I wonder if I had reported what Beau did to me right after he did it, maybe I could have prevented her from being raped.”
PART FIVE
Trial by Jury
The U.S. legal system is organized as an adversarial contest: in civil cases, between two citizens; in criminal cases, between a citizen and the state. Physical violence and intimidation are not allowed in court, whereas aggressive argument, selective presentation of the facts, and psychological attack are permitted, with the presumption that this ritualized, hostile encounter offers the best method of arriving at the truth.
Constitutional limits on this kind of conflict are designed to protect criminal defendants from the superior power of the state, but not to protect individual citizens from one another….All citizens are presumed to enter the legal arena on an equal footing, regardless of the real advantages that one of the parties may enjoy. The Constitution, therefore, offers strong guarantees for the rights of the accused, but no corresponding protection for the rights of crime victims. As a result, victims who choose to seek justice may face serious obstacles and risks to their health, safety, and mental health.
JUDITH LEWIS HERMAN
“The Mental Health of Crime Victims”
Journal of Traumatic Stress, April 2003
CHAPTER TWENTY-ONE
On March 16, 2012, ten months before Beau Donaldson was sent to prison for raping Allison Huguet, Cecilia Washburn reported to the Missoula police that she had been raped by Donaldson’s teammate Jordan Johnson. At the time, Johnson was already being investigated by the University of Montana for allegedly raping Washburn.
On May 23, 2012, the University Court issued a ruling that Johnson was guilty of rape. On June 6, after reviewing the court’s decision, President Royce Engstrom ordered him expelled.
On July 31, 2012, while Jordan Johnson’s expulsion from the university was under confidential appeal, Missoula County prosecutors filed court documents charging him with sexual intercourse without consent, a criminal charge that potentially had far more serious consequences than expulsion. If found guilty, Johnson could be sent to prison for life.
On August 7, 2012, a week after the criminal rape charge against Jordan Johnson was filed, Johnson’s lawyers filed a motion in Montana district court to dismiss the case. It caught more than a few Missoulians by surprise when they noticed that the motion had been written by Kirsten Pabst.
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AS CHIEF DEPUTY Missoula County attorney, Pabst had been Fred Van Valkenburg’s second-in-command, in charge of prosecuting sexual assaults. In March 2012, the same month Cecilia Washburn went to the police to report that she was raped by Johnson, Kirsten Pabst unexpectedly resigned from the Missoula County Attorney’s Office after fifteen years on the job to start her own law firm. In a Missoulian article announcing her decision to leave, she explained that a solo practice would allow her more flexibility and more free time. “I want to focus on my family and horses and dogs,” she told reporter Gwen Florio.
So it came as a shock when, scarcely a month later, Pabst quietly joined forces with lawyer David Paoli as defense counsel for Jordan Johnson in a case that was expected to culminate in one of the most viciously contested and highly publicized trials in the history of Missoula. When the trial got under way, Pabst would be using her considerable expertise against her former colleagues in the prosecutor’s office to keep Johnson from joining Beau Donaldson in prison.
Had she remained in office, Kirsten Pabst probably would have been the lead prosecutor in the Johnson rape case. Her motion on August 7 to dismiss the criminal charge against him was the first public indication that, instead, she intended to do everything in her power to help Jordan Johnson beat the rap.
Pabst’s motion was the opening salvo in this battle. In asking the court to throw out the case, Pabst argued that there was a lack of “probable cause to sustain the charge of sexual intercourse without consent.” This, of course, was the same reason Pabst gave for refusing to charge Calvin Smith with raping Kaitlynn Kelly back in November 2011, when Pabst was still a prosecutor.
According to the Department of Justice’s investigation of the Missoula County Attorney’s Office, from January 2008 through April 2012 the Missoula Police Department referred 114 reports of sexual assault of adult women to the MCAO for prosecution. A “referral” indicated that the police department had completed its investigation of the case in question, determined that there was probable cause to charge the individual accused of sexual assault, and recommended that the case be prosecuted. Of the 114 sexual assaults referred for prosecution, however, the MCAO filed charges in only 14 of those cases. The reasons most often given for declining to prosecute were “insufficient evidence” or “insufficient corroboration”—that is, lack of probable cause. Kirsten Pabst was in charge of sexual assault cases for all but the final two months of the fifty-two-month period investigated by the DOJ.
Throughout the United States, decisions about whether or not to file charges in sexual-assault cases are generally left up to the discretion of prosecutors, who enjoy nearly complete immunity from both criminal and civil liability for their decisions—especially when they decline to prosecute. If a prosecutor doesn’t want to pursue a case, she can simply state that there is “insufficient probable cause,” and the case will not be prosecuted. Although this leaves victims with no recourse when their cases are disqualified, prosecutors will argue that such wide latitude is necessary to keep the wheels of the criminal justice system turning.
But it isn’t so easy to dismiss a case for lack of probable cause when you are no longer a prosecutor, as Kirsten Pabst discovered after she went to work as a defense lawyer for Jordan Johnson. As counsel for the accused, she needed the sanction of a judge to make the charges against her client disappear. In the motion Pabst submitted to the court seeking dismissal of the Johnson case, she argued that the charging documents filed by Van Valkenburg’s office (“the State”) presented
a materially incomplete and misleading version of the facts….The State then sent the incomplete, misleading and prejudicial document to multiple members of the media. Such conduct…violates Johnson’s right to Due Process. Based upon [this] conduct…and considering the omitted and corrected facts that should have been contained in the charging documents, dismissal is the only appropriate remedy.
This case has arisen in the unfortunate context and under the cloud of a federal Department of Justice investigation into complaints about how the University of Montana, the Missoula City Police Department and the Missoula County Prosecutor’s Office handle cases involving alleged sexual assault….
Understandably, the State would like to demonstrate its reflexive and compassionate response to victims of sexual crimes….Unfortunately, while multitudes of competent and noble exercises of prosecutorial discretion* go unnoticed, the State has chosen to use Jordan’s case—one which lacks probable cause—as a means to try to send a message. The collateral damage to Jordan and his family is immeasurable….
Because the State’s grounds for charging Jordan are based entirely upon the alleged victim’s statements, the contradictions of her story would have completely undercut the alleged probable cause for the crime.
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Two weeks after Pabst filed her motion to dismiss, chief prosecutor Fred Van Valkenburg responded with a brief protesting that she had
filed a thinly veiled press release under the guise of a legal proceeding. [Her] motion is rife with irrelevant, unnecessary, prejudicial, and objectively inadmissible evidence….[A pre-trial motion is] not the place to dispute the State’s evidence, offer alternative interpretations of the evidence, or make determinations of witness credibility. Determinations of witness credibility lie squarely with the province of the jury….Nor is a pre-trial motion an appropriate way to make a claim that a rape victim did not act like a rape victim should.
Judge Karen Townsend, whose job it was to rule on Pabst’s motion to dismiss, found Van Valkenburg’s argument more cogent than Pabst’s. In a court order dated September 5, 2012, Townsend decreed,
[T]he Court does not believe that the State omitted material facts….Looking at everything, using common sense and drawing permissible inferences,…the Court…concludes that there is a “fair probability” that the defendant committed the offense of sexual intercourse without consent….
For the reasons outlined above, Defendant’s Motion to Dismiss is DENIED.
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ON FEBRUARY 6, 2013, two days before the trial of Jordan Johnson was scheduled to begin, reporter Jim Robbins observed in a piece published in the New York Times,
Mr. Johnson’s trial comes on the heels of the sentencing of a former Grizzlies running back, Beau Donaldson, who pleaded guilty to raping a childhood friend in 2010 as she slept in his apartment….
Questions have been raised about whether Mr. Johnson can get a fair trial amid such controversy. Court officials have assembled an extra-large pool of 400 for the jury selection that begins Friday.
“You have to believe that the presumption of innocence is somehow affected,” said Milt Datsopoulos, who represented Mr. Donaldson and is also on the National Advisory Board for Grizzly Athletics, a booster organization. He believes that his client’s sentence was more severe than it would have been had there not been what he called “a toxic atmosphere” in Missoula.
“They made him a poster child for a supposed major problem,” Mr. Datsopoulos said of Mr. Donaldson. “I don’t think a problem exists.”
Datsopoulos expanded on this theme in an article by Lester Munson posted on ESPN.com on February 8:
“The mess that has developed is an unfortunate thing,” said Datsopoulos….“The accusation that the county attorney has not pursued cases against football players is totally not true. It is now hard to get a fair trial. The presumption of innocence has been flip-flopped, and football players are now presumed to be guilty.”
Instead of preferential treatment for football players, Datsopoulos asserts, the prosecutors are “very aggressive in their cases against football players and in their demands for stiff sentences. The deputies in the office of the county attorney are female and activist, and they make every case a matter of women’s rights and a gender issue.”…
“It is certain,” Datsopoulos said, “that the environment created in Missoula is responsible for the 10-year sentence. [Donaldson] did the right thing; he is a quality guy; he told the police what he did; he wanted to clear it up, and it has cost him dearly.”
Contrary to the spin provided by Milt Datsopoulos in advance of Jordan Johnson’s trial, however, the combination of Johnson’s status as such a cherished member of the Griz and the fact that the trial was being held in Missoula almost certainly worked to Johnson’s advantage. The town is known as Grizzlyville for good reason, a point driven home by the public outcry ignited by a statement made by Pat Williams—a University of Montana alumnus and a member of the Montana Board of Regents of Higher Education, the body that oversees the state university system. Williams, who represented Montana in the U.S. Congress from 1979 to 1997, told Lester Munson,
The football team was recruiting too many thugs. Rape was not the only problem. There was vandalism, there were personal assaults, and there was destruction of property. The players were pampered and adored. Too many of them had the feeling they were bulletproof and immune to the rules that all of us must follow. They acted like arrogant marauders.
Williams’s comments to Munson about thuggery—and similar comments Williams made to the New York Times and a Montana radio station—angered Griz fans, who circulated a petition demanding that he be kicked off the Board of Regents.
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JURY SELECTION FOR State of Montana vs. Jordan Todd Johnson commenced on Friday morning, February 8, 2013, and was completed on midday the following Monday, February 11, with seven women and five men being seated in the jury box. After a break for lunch, the trial got under way with opening statements from each side. The prosecution went first. “This case is about a young woman who is horribly betrayed by someone that she trusted,” Special Deputy Missoula County Attorney Adam Duerk began. “There is one person on trial in this matter. Not Grizzly football, not that young woman who accused Mr. Johnson of the crime.”
The only person who was on trial, Duerk made clear, was Jordan Johnson, and he had been charged with sexual intercourse without consent. Duerk emphasized to the jury that according to Montana law, “resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent.” And then he provided a detailed account of what happened in Cecilia Washburn’s bedroom on the night of February 4, 2012.
Duerk, a slender man in his early forties with curly black hair, was an expert litigator at a Missoula law firm. He’d been appointed as a special prosecutor to assist the Missoula County Attorney’s Office during the Jordan Johnson trial and was working pro bono. In his opening statement, his task was to tell a brief story to the jury, based on the evidence to be presented in the days ahead, that would be more compelling than the story defense counsel Kirsten Pabst would be telling immediately after he finished. Everyone knew that the main thrust of Adam Duerk’s opening statement would be that Washburn explicitly and repeatedly told Johnson that she didn’t want to have sex with him that night. Everyone knew that the main thrust of Pabst’s opening statement would be that Washburn consented to have sex with Johnson.
Cecilia Washburn was lying, or Jordan Johnson was lying. Or perhaps both of them were misrepresenting key details of their respective accounts. There wasn’t enough incontrovertible evidence to prove whose version came closest to the truth, however. The outcome of the trial would thus hinge on bits of tangential substantiation and the testimony of individuals who weren’t in Washburn’s bedroom when the alleged rape occurred. Most of the evidence was subject to conflicting interpretations. Whoever assembled the most persuasive narrative from these disjointed shards of information—whoever told the best story, in other words—was most likely to sway the jury. The opening statements would be bare-bones summaries of the full-length narratives each side intended to flesh out as the trial ran its course.
Many of the details of what transpired between Washburn and Johnson were undisputed. Johnson texted Washburn at 2:00 in the afternoon on February 4, and they formulated a plan to watch a movie at Washburn’s residence that night. Around 10:45, Johnson phoned Washburn and asked her to give him a ride to her house. She drove over, picked him up, and then drove back to her place. Around 11:00 they went into her bedroom, closed the door, and inserted a movie into her DVD player. Washburn’s housemate Stephen Green was slumped on a couch just outside the door, engrossed in a video game.
Soon after the movie started, Jordan Johnson and Cecilia Washburn began making out, they took each other’s shirts off, and had sex without a condom. The intercourse lasted only a few minutes. While Johnson was penetrating Washburn from behind, he realized he was about to climax, withdrew his penis from Washburn’s vagina, and ejaculated into his hand. Immediately after ejaculating, Johnson wiped the semen off his hand and his penis, gathered his clothing, and went into an adjacent bathroom. While he was in the bathroom, Washburn pulled
on her own clothes and then sent a text to Green that said, “Omg, I think I might have just gotten raped. he kept pushing and pushing and I said no but he wouldn’t listen…I just wanna cry…omg what do I do!” A few minutes later, Washburn drove Johnson home.
“On many of these points,” prosecutor Duerk told the jury, “there is very little difference in the account between Cecilia’s version and the defendant’s version.” Duerk emphasized, however, that when it came to a handful of crucial details, their accounts of what happened diverged in ways that couldn’t be reconciled. “She’ll tell you that before anyone’s pants came off,” Duerk said, “before the defendant was on top of her, before there was any penetration at all, she told him no, multiple times, in multiple ways. She said, ‘No, not tonight.’ Playfully at first….But then as things got more heated, she made it clear through words and actions that she did not want to have sex.
“She’ll take the stand,” Duerk continued, “and tell you that she was very clear with the defendant….But the defendant kept going. He positioned himself on top of her….His demeanor changed. He became more aggressive. And, in her words, ‘It got real scary, real fast.’ Again she said no….The defendant put his forearm across her chest and held her down. He stripped her leggings and underwear off; her underwear was still hooked on her ankle. She began to push him away….The defendant said, ‘Turn over, or I’ll make you.’ At that point, Cecilia continued to resist. She was scared. She was in shock. She was starting to shut down, but even then she said no. And then he did flip her over, he penetrated her, and he ejaculated.”
