Missoula

by Jon Krakauer

[A]lthough we expect attorneys to adhere to the rules of evidence and confine their strategies to the ethical boundaries of the rules, they often bend the rules and stretch the strategies….As a result, trial lawyers ostensibly enjoy a unique privilege in plying their trade: They are largely unanswerable to society for behavior that would be morally questionable elsewhere.

  In the adversarial system, it’s more important to follow legal procedure than to speak the truth. Due process trumps honesty and ordinary justice. Trials degenerate into clashes that bring to mind cage fights, characterized by wildly exaggerated claims, highly selective presentation of the facts, and brutal interrogation of witnesses.

  The excessive partisanship of the adversarial system becomes especially problematic when the offense being adjudicated is rape, which all but guarantees that lawyers for the accused party will attempt to turn the tables and put the victim on trial. As Judith Lewis Herman, professor of psychiatry at Harvard Medical School, explains in “The Mental Health of Crime Victims,”

  Involvement in legal proceedings constitutes a significant emotional stress for even the most robust citizen. For victims of violent crime, who may suffer from psychological trauma as a result of their victimization, involvement in the justice system may compound the original injury….Indeed, if one set out intentionally to design a system for provoking symptoms of posttraumatic stress disorder, it might look very much like a court of law.

  The mental health needs of crime victims are often diametrically opposed to the requirements of legal proceedings. Victims need social acknowledgement and support; the court requires them to endure a public challenge to their credibility. Victims need to establish a sense of power and control over their lives; the court requires them to submit to a complex set of rules and procedures that they may not understand, and over which they have no control. Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes-or-no questions that break down any personal attempt to construct a coherent and meaningful narrative. Victims often need to control or limit their exposure to specific reminders of the trauma; the court requires them to relive the experience by directly confronting the perpetrator.

  The trial of Jordan began on Friday, February 8, 2013, and ended three weeks later on Friday, March 1. The first of the thirty-five witnesses called to testify was Cecilia Washburn, the victim. Under friendly questioning by Montana Assistant Attorney General Joel Thompson (who was collaborating with the prosecutors in the Missoula County Attorney’s Office because it was such a high-profile case), Washburn spent more than a day on the stand providing a detailed account of the events described by prosecutor Adam Duerk in his opening statement. When Thompson was finished, the defense was given the opportunity to cross-examine Washburn, and David Paoli’s questions weren’t as genial.

  Right away, Paoli attempted to establish that Washburn was vindictive, and her statements unreliable. His first question was “It’s true, is it not, that when I talked to you previously [during a pretrial deposition], you told me that you wanted Jordan to suffer?”

  “No,” Washburn replied, prompting Paoli to produce a transcript of the deposition and present it to her on the witness stand.

  “You said and believed,” Paoli recited, “that you wanted him to suffer like you believed you have suffered; isn’t that right?”

  After reading the transcript, Washburn admitted she’d said that.

  A few minutes later, Paoli grilled Washburn about her childhood, trying to establish that she was emotionally unstable. “You have said and you have written that you were bullied in day care; is that right?” he asked.

  “Yes,” she replied.

  “And you were bullied in junior high school?” he continued.

  “Correct.”…

  “And you got bullied so bad that you had to go get counseling; is that fair?”

  “Yes.”

  “And you had anxiety attacks then?”

  “Yes.”

  “Panic attacks?”

  “Yes.”

  “Suicidal ideations, then?”

  “Yes.”

  “And the bullying continued in high school, didn’t it?”

  “It fizzled. I mean,…it wasn’t as common as it was in junior high.”

  “And in high school there were two girls that bullied you; isn’t that what you told me?”

  “Yes.”

  “And of course your father would have known about it; isn’t that right?”

  “No.”

  “Well, your father worked in the school?”

  “Yes.”

  “Did you tell your father about the bullying?”

  “No.”

  “Would it surprise you that neither of your parents recall that you were bullied in that period of time?”

  “No.”

  “It would not surprise you?” Paoli demanded again.

  “No,” Washburn answered.

  Earlier, under friendly questioning from prosecutor Joel Thompson, Cecilia Washburn had said that she “had never thought in a million years” that she would ever be raped. After reminding her of this statement, Paoli demanded, “But you, in fact, had a very specific dream—a nightmare, frankly—on Christmas 2011, about being raped; isn’t that right?”

  “If that’s what the record shows,” Washburn answered, “then yes.”

  Paoli showed her a text message she’d sent on December 26, 2011, and then asked, “So this dream you had was about a Grizzly player raping you; isn’t that right?…And it’s not just any football player.”

  Cecilia Washburn’s nightmare had been about Trumaine Johnson (no relation to Jordan Johnson), who had played cornerback for the University of Montana, extremely well, and in 2012 was drafted by the St. Louis Rams, and went on to become a star in the National Football League. But in December 2011, a week before Washburn had the dream, Trumaine Johnson was tased and arrested by the Missoula police after brutally beating a man at a party in his apartment following a Griz football game, an incident prominently reported in the Montana news media.

  In Washburn’s nightmare, Trumaine hit her over the head and raped her in a van. At the time she had this dream, Trumaine was in fact the roommate of the man who was Washburn’s boyfriend.

  —

  THROUGHOUT HIS CROSS-EXAMINATION of Cecilia Washburn, defense counsel David Paoli aggressively challenged every conceivable inconsistency in her prior testimony. Some of these alleged inconsistencies were potentially damaging. For example, Jordan Johnson claimed that shortly before they had sex, Washburn asked him if he had a condom, and when he said no, according to Johnson, she replied, “It’s okay.” Washburn claimed this conversation never happened. But four months before the trial, when UM Dean Rhondie Voorhees grilled Washburn during Johnson’s appeal of his expulsion from the University of Montana, and Voorhees asked Washburn whether she and Johnson had talked about a condom, Washburn seemed to waffle and didn’t answer the question.

  Paoli zeroed in on this. “You and Jordan had a discussion about a condom, didn’t you?” he asked Washburn.

  “We did not,” she answered without hesitation.

  “You will admit that you have been equivocal in the past about whether you had a discussion about a condom, correct?…And you were equivocal with Dean Rhondie Voorhees…and didn’t have a response, correct?”

  “Correct.”

  “So now the issue has become important, and you’re clear about whether you had that discussion?”

  “Correct.”

  Paoli also jumped all over Washburn about inconsistencies that seemed of no consequence. For instance, he tried to make hay out of conflicting accounts about whether Washburn ate anything during the five or ten minutes that elapsed between the alleged rape and driving Johnson home. “You grabbed a snack, didn’t you?” Paoli demanded.

  “No,” Washburn said.

  “You’re aware that Stephen [Green, Washburn’s housemate] has said you
went in and grabbed a snack?”

  “Yes.”

  “And what do you make of…what Stephen’s testimony is versus your testimony?”

  “I can’t make comments on Stephen’s testimony. That’s his testimony. But I didn’t grab a snack.”…

  “He doesn’t have any reason to make that up, does he?” Paoli continued.

  “No.”

  “He’s just telling what he thought he saw you doing in the kitchen, right?”

  “Right.”

  Referring to a diagram, Paoli asked, “And it’s true, is it not, that in this kitchen, you keep your food down here towards the dining room?”

  “Yes,” Washburn replied. “Right next to the sink.”

  Paoli spent even more time haranguing Washburn about whether she had contacted a lawyer to discuss filing a civil claim against Johnson. After confirming that she had indeed contacted a lawyer, Paoli asked, “This is a lawyer in Atlanta who files lawsuits for money; isn’t that right?”

  “I don’t know what she does,” Washburn replied.

  “Did you look at her website?…Did you look at her many victories and the money that she’s earned for clients?…Did it include jury verdicts for money?”*2

  “No, it did not.”…

  “Have you engaged the services or retained this Atlanta law firm?”

  “No, I have not.”

  “Have they told you to get back to them after this is all over?”

  “No, they have not.”…

  “Are you planning on filing a lawsuit against Jordan Johnson?”

  “No.”

  “Are you planning on filing a lawsuit against the University of Montana?”

  “No.”

  “Are you planning on filing a lawsuit against the Grizzly football team?”

  “No,” Washburn answered.

  —

  EVENTUALLY PAOLI GOT around to challenging Washburn’s claim that she’d made it explicitly clear to Jordan Johnson that she did not want to have sex on the night he allegedly raped her. Brandishing a document titled “Cecilia Washburn Reflection,” which she’d written three or four days after the incident, Paoli asked, “You gave a lot of thought to this, didn’t you?”

  “I did,” Washburn answered.

  Paoli handed Washburn a copy of the document and asked, “So in your reflections, you wrote that you thought this whole situation was your fault, right?…So what were the mixed signals that you gave that made you think this was all your fault?”

  “Maybe it was the clothes I was wearing, us making out, or me taking off my shirt that made Jordan think I wanted to have sex,” Washburn answered.

  “And then you regret not having called to Stephen [Green, her friend and housemate] or done more to resist Jordan?” Paoli continued.

  “I should have screamed out to my roommate in the living room,” she answered, “or used more force to resist him, yes.”

  Paoli handed Washburn a copy of a Facebook message she sent to a friend in Great Falls named Bryan Court, eighteen days after the alleged rape. “And you express again in this document that all you can think about is how you could have prevented it, right?” Paoli asked.

  “Yes,” Washburn answered.

  “And how you should have tried harder, right?”

  “Yes.”…

  “And then your thoughts lead you to say, ‘And now I keep thinking, well, maybe I did want it, and that’s why I didn’t punch him or kick him or bite him?’ ”

  “That’s the first part, yes,” Washburn replied, but then she reminded Paoli (and the jury) that there was a second part to the Facebook message he’d neglected to mention.

  Paoli conceded that there was a subsequent statement, in which Washburn said, “It’s all ridiculous because I know I didn’t ask for this.” But Paoli immediately resumed asking questions intended to show that she was lying about being raped: “And then you say, ‘It just seems like the more and more this drags on, the more and more I feel guilty about it.’ Isn’t that right?”

  “Yes.”

  “And you express concern in here, in your own words, that the whole situation makes you feel like you just lied?”

  Washburn acknowledged, “It makes me feel like I lied, yes.”

  “And then you say, ‘Maybe my other friends will think I lied about it, or what if it really is my fault….It’s so frustrating.’ ”…

  “I wrote that, yes,” Washburn confirmed.

  In her Facebook message to Bryan Court, Washburn also mentioned her childhood anxiety disorder. “That’s the anxiety disorder you had prior to this, right?” Paoli asked.

  “In the seventh grade,” Washburn answered.

  “And that’s the anxiety disorder and suicidal ideations that you have told us that you went and got counseling for; isn’t that right?…And those are the things that I asked you whether your parents obviously should know about, and you said, ‘Yes, they do.’ Isn’t that right?”

  “Yes,” Washburn answered.

  A little later, Paoli asked yet again, “So, Miss Washburn, you gave Jordan Johnson mixed signals; isn’t that right?”

  “It could be seen that way,” she answered.

  “And you have told us you could have been clearer?…”

  “Yes.”

  “And you have told and expressed on several different occasions that you considered yourself responsible and you felt guilty for what happened; isn’t that right?”

  “Right.”…

  “So you understand that when you say things to people or when you write them down,…individuals rely on what you say….And we should be able to rely on them; isn’t that right?” Paoli scolded.

  “Yes,” Washburn replied.

  —

  WHEN PROSECUTOR JOEL THOMPSON was given the opportunity to question Cecilia Washburn again (“redirect examination,” in lawyers’ parlance), he began by saying that he wanted to “clarify” a few of the statements defense counsel David Paoli had elicited from Washburn. He handed her a copy of the Facebook message she’d sent to her friend Bryan Court, and asked Washburn to read a portion of it that Paoli had deliberately passed over.

  “ ‘I have been thinking about this whole messed-up situation,’ ” Washburn read aloud to the jury, “ ‘and it’s driving me crazy, and making me think crazy thoughts.’ ”

  Thompson asked her if the intent of the message was to let her friend know that she was having “crazy thoughts.”

  “Exactly,” Washburn answered. “My crazy thoughts.”

  “Mr. Paoli didn’t ask you about that part of it, did he?”

  “No.”

  During Paoli’s cross-examination, he’d repeatedly posed questions to Washburn requiring her to acknowledge that, during the period when she claimed she was being raped, her housemate Stephen Green was playing a video game in the living room, a few feet outside her bedroom door. Prosecutor Thompson pointedly asked Washburn, “Have you ever claimed that you made any kind of sound that Stephen should have heard?”

  “No, I have not,” she answered.

  “You readily admit that you did not scream?” he asked.

  “I did not scream.”

  “Mr. Paoli asked you about your statement about how you could have been more clear with Jordan; can you explain what you meant by that?”

  “I could have done more things to prevent him from raping me. I could have screamed, but I didn’t. I could have rolled off the bed, but I didn’t.”

  “Could have scratched his eyes out, couldn’t you?”

  “I could have done that, too.”

  “So when you are referring to the fact that you could have been more clear, does that mean that you didn’t give sufficient signals to him that you were not consenting?” Thompson asked.

  “No, I gave him sufficient signals,” Washburn replied.

  “Mr. Paoli also asked you about things that could have happened differently that night. You could have screamed. He asked you that also, correct?”

&
nbsp; “Correct.”

  “Were you prepared to have a confrontation with the defendant in your home that night?”

  “No.”

  “Would screaming have caused a confrontation?”

  “Yes.”

  “Would fighting with him have caused a confrontation?”

  “Yes.”

  “Why weren’t you willing to have a confrontation?”

  “Because I just wanted him out of my house. I wasn’t prepared for that,…and I’m not that type of person, either. I just wanted him gone.”…

  Thompson asked Washburn, “Did you have any plans to sue anybody over this or make any money off this allegation?”

  “No,” she answered.

  “Are you here because Jordan Johnson didn’t snuggle with you after sex on that night?”

  “No.”

  “Are we here because the quarterback refused to be your boyfriend?”

  “No.”…

  “Have you prospered in any way from this process?”

  “No.”

  “Have you at times regretted coming forward at all?”

  “Yes,” Washburn replied, specifying that she’d felt this way as recently as the previous week.

  “When you made that comment about wanting Jordan to suffer, that Mr. Paoli talked to you about, why did you say that?”…

  “Because it seemed like he wasn’t being held accountable for his actions. I’m the one suffering through the trauma, and he was walking around campus like nothing happened….I want him to feel the pain that he inflicted on me.”

  * * *

  *1 In an effort to encourage lawyers to act more honorably, in 2004 the Montana Supreme Court removed every mention of “zealously” from the preamble to the Montana Rules of Professional Conduct. The revised preamble states, “As advocate, a lawyer asserts the client’s position under the rules of the adversary system.” It’s not clear that this revision has had any effect on the conduct of Montana lawyers.

  *2 Trial lawyers almost always advertise the large monetary sums they’ve won for clients. On his own website, Paoli boasts of several six-figure jury verdicts and settlements he’s won.

  CHAPTER TWENTY-FOUR