Missoula: Rape and the Justice System in a College Town

  “Did it appear as though she enjoyed her new identity as a victim?”

  “No.”…

  “But she liked the attention, didn’t she?”

  “No.”…

  “From your observations of her on a daily basis, have you been able to see the patterns in which she copes and deals with the stress?” Thompson asked.

  “She distances herself from everybody,” Green testified. “She will just kind of disappear into her room or something like that, and not want to talk to anybody, not want to say anything. She just kind of internalizes it.”

  —

  CLAIRE FRANCOEUR, the nurse-practitioner and forensic medical examiner at the First Step sexual-assault resource center who’d examined Allison Huguet and Kelsey Belnap, was called as a witness by the prosecution at the end of the trial’s first week. She showed the jury photographs and a video of Cecilia Washburn’s genitals while describing the forensic exam she performed the day after Washburn was allegedly raped. Prompted by questions from prosecutor Adam Duerk, Francoeur pointed out abrasions and a small laceration inside Washburn’s vagina, as well as minor bruises on her collarbone. She also testified that she found tenderness throughout the vaginal wall and tenderness on the side of Washburn’s head. All of which, she said, were “consistent with sexual trauma, though nonspecific.”

  After the video of Washburn’s genitals finished playing and the public was readmitted to the courtroom, defense counsel David Paoli, bent on impugning Francoeur’s credibility, began an especially contentious cross-examination. “Nurse Francoeur…,” he began, “your job is not to determine, and you can’t determine, nonconsensual versus consensual [sex]; isn’t that right?”

  “Correct,” she answered.

  Paoli then lambasted Francoeur for failing to read some medical literature he’d asked her to review. “I gave you some of that literature on May 10,” he thundered, “and you hadn’t even reviewed it by December, when I took your statement; isn’t that right?”

  “That’s correct,” she replied.

  “The literature I gave to you on May 10,” Paoli continued, “have you read it to date?”

  “I have not read the article in its entirety, no,” Francoeur answered.

  “There were three articles. You haven’t read any of them, have you?” he demanded. When Francoeur said she didn’t recall, Paoli became even angrier. “What does it mean when you say you don’t recall?” he raged. “Because you’ve done that with me a lot!”

  “Objection!” prosecutor Adam Duerk barked, but Paoli ignored him and continued berating Francoeur.

  “Objection!” Duerk shouted again, protesting that Paoli was being argumentative.

  “Sustained,” Judge Townsend agreed.

  “You became friends with Cecilia Washburn, didn’t you?” Paoli spat.

  “I would not describe her as a friend,” Nurse Francoeur replied.

  “How would you describe her?”

  “As a patient.”…

  “You said that part of your responsibilities as a medical professional was to refer her to a lawyer?…You referred her to an Atlanta law firm, did you not?”

  “I gave her a name,” Francoeur explained.

  “And you made contact with that law firm on her behalf, didn’t you?”

  “I did not.”

  “You had made contact with that law firm to tell them that Ms. Washburn was going to be calling them?”

  “It was not me who made that contact.”…

  “And this was about the time that Ms. Washburn was going to go to the police department; isn’t that right?”

  “I believe it was before then. I don’t recall the exact date.”…

  “Let me remind you when she went to the police: March 16. And you know that because you went with her; isn’t that right?”

  “That’s correct.”

  Paoli professed that he was shocked that Francoeur, a nurse, would accompany a patient to the police station or refer a patient to a lawyer. In a voice edged with scorn, he inquired, “That’s part of your medical professionalism?”

  Francoeur replied that such consultation was part of providing “patient-centered” care, in accordance with the standard protocols of her profession.

  “Patient-centered and litigation-fueled? Is that part of what it is?”

  “Objection!” shouted Duerk.

  “Sustained,” Judge Townsend concurred.

  Paoli nevertheless continued hectoring Francoeur about referring Washburn to a lawyer for several more minutes. “And it is part of your professional practice to refer [your patients] to lawyers in Atlanta,” he fulminated. “Is that right?”

  “It’s part of my job to refer them to whatever resources they need,” she wearily replied, “including attorneys.”

  Finally realizing that he had perhaps dwelled overly long on this point, Paoli stopped badgering Francoeur about the propriety of referring an alleged victim to a lawyer and started badgering her about the way she performed Cecilia Washburn’s forensic exam. Paoli even suggested that it was not Jordan Johnson who caused the injuries to Washburn’s genitalia but Francoeur, when she conducted the examination. As evidence of her ineptitude, he pointed out that the finger of one of the surgical gloves she wore had a minuscule rip. “The torn glove is really outside the standard of care, isn’t it?” he asked.

  “It’s outside of the standard, yes,” Francoeur agreed.

  Paoli brought up the laceration inside Washburn’s vagina that Francoeur had identified in the video. “This small laceration, it’s approximately a millimeter, isn’t it?” he asked.

  “I’d have to look at the tape again,” she answered, “but that sounds about right: one to two millimeters.”…

  “I mean, it’s tiny, correct?” Paoli continued.

  “Yes.”…

  When he inquired if the laceration could have been made prior to the alleged assault, she said yes. “Even up to a week before; isn’t that right?” he asked.

  “It would be rare to see injuries up to a week before, but it could be.”

  Paoli asked if the tenderness and abrasions Francoeur had found on the wall of Cecilia Washburn’s vagina and the red marks she’d identified on Washburn’s collarbone could have been caused by consensual sex. “It’s possible,” Francoeur conceded.

  When David Paoli finally completed his cross-examination, prosecutor Adam Duerk was given an opportunity to interrogate Nurse Francoeur again. “In terms of your care and treatment with Ms. Washburn, did you maintain your objectivity?” he asked.

  “I did,” she replied.

  “Did your examination of Ms. Washburn cause any of the injuries, either the genital or the nongenital injuries?”

  “No.”

  “Did the way that you conducted this First Step acute sexual trauma examination violate any guidelines that you’re aware of?”

  “No.”…

  “Do these guidelines, the 2004 national protocols, talk about your duty to provide information about civil attorneys to a victim?”

  “They do.”

  “Do these national guidelines tell you that you are supposed to help victims communicate with law enforcement officers?”

  “They do.”…

  “Was there anything in Cecilia Washburn’s history that indicated to you that these injuries were caused prior to February 4, 2012?” prosecutor Adam Duerk asked.

  “No,” Nurse Francoeur replied.

  “Objection, Your Honor!” defense counsel David Paoli protested.

  Judge Townsend asked Paoli and Duerk to approach the bench for an off-the-record conference to discuss Paoli’s objection. As the lawyers were leaving the bench after huddling with Townsend, Paoli muttered something under his breath to Duerk—a threat or imprecation, apparently, because Duerk turned toward Paoli and angrily demanded, “Excuse me? What was that?”

  Paoli said nothing, but he stood chest to chest with Duerk, glaring down at him. For a long beat, Paoli—who probably weighed at leas
t a hundred pounds more than Duerk—looked like he was about to deliver a head butt to the bridge of Duerk’s nose. Townsend defused the standoff by pointedly declaring, “You may continue, Mr. Duerk,” after which Duerk resumed his redirect examination of Francoeur, and Paoli retreated to the defense counsel’s table.

  “Did the torn glove affect the ultimate findings of your examination in this case?” Duerk asked.

  “No,” Francoeur replied. Cecilia Washburn’s genital injuries, she assured the jury, were “consistent with sexual trauma.”

  —

  CONNIE BRUECKNER, the Missoula police detective assigned to be the lead investigator for the Jordan Johnson case, was called by the prosecution to testify in support of Cecilia Washburn. Under direct examination by prosecutor Adam Duerk, Brueckner testified that Cecilia Washburn had cooperated fully with her investigation, including voluntarily turning over her cell phone and allowing the police to download all of the twenty-nine thousand text messages it contained, many of which defense counsel David Paoli used in court to try to smear Washburn’s reputation. To some degree Johnson also cooperated with Brueckner’s investigation, but, suspiciously, he deleted all the texts about Washburn he’d sent in the aftermath of the alleged rape, before Detective Brueckner had an opportunity to ask for them. And because Washburn didn’t go to the police until six weeks after the alleged rape, Johnson’s cell-phone carrier had deleted his texts from its system by the time Brueckner began her investigation.

  Three months after the night in question, Brueckner and another detective, named Dean Chrestenson, interviewed Jordan Johnson at the police station in the presence of defense counsel Kirsten Pabst. As an adjunct to Detective Brueckner’s testimony during the trial, Duerk played a videotape of this interview. As they watched the video in the courtroom, the members of the jury heard Detective Chrestenson admonish Johnson, “There’s two people in that room together, and one of you is lying. Your behavior after the incident—that, to me, is the most alarming part.” What’s more, Chrestenson said, Johnson had plenty of reason to lie, because if he were convicted it would end his dream of playing professional football after college or becoming a football coach.

  Upon hearing this, Johnson began to sob. “I don’t care about all that,” he told Chrestenson. “I just want to be a kid again. I don’t care about football.”

  At one point in the video, Johnson told Detective Brueckner that he said almost nothing to Cecilia Washburn from the time they started making out on Washburn’s bed until she dropped him off at his house after the alleged rape, and she spoke to him only once: Washburn playfully uttered, “ ‘Oh, you’re bad,’ ” Johnson recalled, “when I turned her over.” As soon as he uttered these words, however, Johnson seemed to regret admitting that he’d turned her over, and he quickly added, “Well, we changed positions.”

  After the video ended, prosecutor Adam Duerk asked Detective Brueckner if she’d found this bit of testimony “significant in any way.”

  “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 effec
tively.

  —

  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.