Lisak had pointed out that “rapists can be men who are good-looking, who are likable, charming, gentle, and even timid,” Boylan reminded the jury. He made it clear that “there is no profile” of a rapist. Nobody can be ruled out. “Good people can do bad things.”
Washburn had stated that when she was being raped, it felt “like a dream where you want to scream but you can’t,” Boylan said. “She described being in complete shock.” When she texted Stephen Green, “I think I might have just gotten raped,” Washburn “wasn’t confused about whether she had been raped or not,” Boylan asserted. “She told us, ‘I was sure I got raped, but I didn’t want to believe it’—one of the classic responses described by Lisak.”
A person who commits rape, Boylan said, “especially one like this, is the person who’s in control. He’s in control of the time, the place, the victim.” But the rapist can’t control everything, Boylan told the jury, “and those things he can’t control are what you should be looking at.” Although most rape victims don’t report what happened to the police, Jordan Johnson couldn’t control whether Washburn would be “in that small fraction of women who do choose to report. He couldn’t control that she sent that text. He couldn’t control how her body would show signs.”
Johnson, Boylan continued, “left two kinds of marks on Cecilia Washburn that night, the physical marks and the psychological marks. And those marks…tell you a story of what happened in that room as surely as if a camera had been in there. The first is the mark he left on her chest. He had no explanation for it, but it was there….The genital injuries, as you have seen, can be explained away in many ways.” Boylan conceded that these wounds were not a smoking gun. But the trauma Washburn experienced left an unmistakable psychological mark. “Call it PTSD,” Boylan said, “call it long-term anxiety, call it whatever you want—the defense can deny the diagnosis, but they cannot dispute the symptoms, the symptoms that everybody in her life has seen.”
Before February 4, 2012, Boylan noted, Cecilia Washburn “was vibrant, she was social, she was outgoing. She didn’t take medications. She didn’t see a counselor. She was a normal young woman who earned a place in a highly competitive and very demanding academic program. After February 4, she struggled….And it has been absolutely established that Cecilia Washburn changed drastically after February 4.”
Washburn, Boylan said, is not the “hysterical drama queen the defense would have you believe she was prior to February 4.” Jordan Johnson’s attorneys, Boylan explained, “need you to believe” that Washburn conforms to “a very obvious stereotype of a woman that’s hysterical, vengeful, and deceptive. The crazy woman they warn you about. But that’s not who you met in this trial.”
Rape, Boylan pointed out, is the only crime in which the victim is presumed to be lying. “If a person was mugged in an alley,” she asked the jury, “would we be skeptical of the victim’s testimony…because there weren’t any eyewitnesses?” Would we doubt the victim of a burglary, Boylan wondered, “because they left the door unlocked?” The victim is the wrong person to blame, she argued, whatever the crime. It’s the offender who needs to be held accountable.
There was reason to believe that Jordan Johnson was “a decent young man,” Boylan acknowledged. “But he committed a crime.” The jury had been presented with all the evidence they needed “to give Cecilia the accountability she deserves,” she said. “We humbly ask that you convict this defendant of sexual intercourse without consent.”
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DEFENSE COUNSEL DAVID PAOLI’S truculence in the courtroom could be grating. But even his harshest critics would probably concede that the unflagging intensity of his advocacy for his client was an extraordinary feat. When Paoli stood at the dais and began his closing argument, his defense of Jordan Johnson had consumed his life for the previous thirteen months. His complexion was ashen. He needed a haircut. Puffy folds of skin drooped beneath his eyes, and his jowls sagged heavily over his starched collar and the knot of his yellow tie. He looked like he hadn’t slept for a year.
Despite his exhaustion, or perhaps because of it, Paoli’s summation was delivered with manic energy. Words flew out of his mouth like panicked bats hurtling from a cave. “Justice needs to be fought for,” Paoli declared. “The truth needs to be fought for. The truth does not require an explanation. The truth does not require an expert from Boston.” Jordan Johnson “has completely denied” Cecilia Washburn’s account, Paoli asserted. The prosecutors “stand here and take a big chunk of their opening to talk to you about the expert from Boston who’s here to be educational,…and how he’s more smarter [sic] than all of us. And then, on the other hand, they even encouraged you to use your common sense, except when it comes to the Boston expert. He knows better. I thought it was condescending and presumptuous for them to say to you, ‘He knows so much more about this, so you need to listen to him.’ I don’t buy that. The judge instructed you to use your common sense, and I hope you will, because common sense is what’s needed in this case.”
Paoli’s assault on Dr. David Lisak was relentless: “The Boston expert was needed because there’s so much to explain here. They want to call it counterintuitive.” Ridiculing Lisak’s explanation for why rape victims often failed to flee, or scream, or fight back when they were assaulted, Paoli warned the jury not to be fooled. When people are afraid, he asserted, they run. “That’s common sense. That’s not expert stuff from Boston.”
A few minutes later, Paoli said, “I want to talk to you real quickly about the environment in which we’re trying this case….It’s intense. These people are under intense pressure. And the police are under intense pressure. The Department of Justice is talking to [Missoula County Attorney Fred] Van Valkenburg and his staff….And we know about the police department policy—a special policy that was instituted as a result of political social pressure.” It was the only police policy, Paoli asserted, that deprives people of their constitutional right to due process. “And we all know from civics that that just isn’t right. That’s not what this country is.”
Paoli asked the jury a rhetorical question: “Do you believe Miss Washburn beyond a reasonable doubt? Even the people who know her best doubt her. I’m not being mean,” he said. “I’m just being factual.” Citing the text message in which Cecilia Washburn said, “I think I might have just gotten raped,” Paoli pronounced, “She didn’t know! She did not know!” If Washburn didn’t know whether she’d granted consent, Paoli demanded, how could Jordan Johnson have known whether she’d granted consent? Paoli also brought up Washburn’s passivity during the alleged rape and pointed out, “It’s common sense to talk about the fact that she didn’t scream, she didn’t roll off the bed, she didn’t move in any way.”
To discredit Washburn’s account of how Johnson pinned her on the bed with his forearm across her chest, pulled off her pants, flipped her over, unzipped his own pants, and then penetrated her from behind while holding her forearms down, Paoli produced a life-size cardboard facsimile of Washburn. “This is sixty-eight inches tall,” he told the jury. “That’s her height.” Then he laid the replica of Washburn on the courtroom floor, placed himself on top of it, and demonstrated how it would have been impossible for Johnson to do what she said he’d done—ignoring the fact that the cardboard cutout was flat, whereas both Washburn and Johnson had testified that she was kneeling, with her buttocks raised, when Johnson penetrated her. As Paoli performed this crude reenactment of the alleged rape, Cecilia Washburn and her family watched from the gallery with horror and disgust.
In marked contrast to Washburn, Paoli told the jury, “Jordan Johnson testified to you directly, consistently….She wants to say that he’s some kind of animal that flips a switch and then does some terrible things. And that’s not the truth….You all saw Jordan….He’s as everyone describes him. He’s quiet. He’s contemplative. He does not seek the spotlight. He does not jump up on the pedestal. He played football. And we gave him the status. He didn’t take it. He played football wel
l, and we gave him the status, all of us. And that’s part of the reason he’s here. High profile. Celebrity. DOJ. That’s why he’s here.”
Paoli asked the jury, once again, to ponder Washburn’s seemingly inexplicable behavior immediately after she was allegedly raped: eating a snack, responding to the text from Brian O’Day with a smiley-face emoticon, and then driving Johnson home without giving any indication that she had just been raped. “This is all the stuff that they need the Boston expert to explain,” Paoli said derisively, “because it doesn’t show this violent encounter at all. Not at all….The truth does not require an explanation. I’m sure my dad told me this one. My dad was a tire salesman.”
“Objection!” prosecutor Suzy Boylan declared. “Your Honor, counsel is testifying again.”
“Sustained,” Judge Townsend agreed.
“I have heard that if you’re explaining, you’re losing,” Paoli continued, unfazed by the interruption. “If you’re constantly having to explain, you don’t have the evidence….And the chief explainer, of course, is the Boston expert.”
As Paoli was concluding his two-hour summation, he asked the jury a rhetorical question: Why would Jordan Johnson rape Cecilia Washburn when he knew her housemate was sitting just outside her bedroom door? Why would he even think of committing such a reckless act, given his high profile in the community, his sterling reputation, and everything he stood to lose? “It doesn’t add up,” Paoli insisted.
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AFTER DAVID PAOLI sat down, prosecutor Joel Thompson took the dais to present the state’s rebuttal statement. “A long time ago,” he told the jury, “people figured out that if you repeat something that isn’t true enough times, then people will start to believe that….Mr. Paoli comes up here, and he gave you, I submit, an extraordinarily deceptive closing argument, and misrepresented many facts.”
Gesturing toward Cecilia Washburn’s family in the gallery, Thompson noted that Paoli “continues to claim that those people sitting over there with Cecilia, as they sit here today, doubt her story. Absolutely false.” Cecilia’s family, Thompson explained, reacted the same way most other families of rape victims react: with shock, and disbelief, and self-criticism. “That’s exactly what Dr. Lisak explained to you was the science,” Thompson said. “And what’s interesting is, Dr. Lisak becomes ‘the Boston expert,’ ” in Paoli’s derogatory characterization: “He’s other than us….He’s not from here. So we can’t believe him.”
No expert in the world, Thompson testified, would have been credentialed enough to satisfy David Paoli and Kirsten Pabst. “So we got an expert from Boston to come in here. The best. The best to explain to you the truth about the science, because it is counterintuitive and it is paradoxical. And what he told you in this courtroom, ladies and gentlemen, was not his opinion. He was telling you what decades of research have shown.” Lisak provided the jury with the scientific background they needed to understand the evidence, Thompson said, while Paoli and Pabst “firmly staked out territory on the opposite side of scientific research….They have said, ‘Disregard what [Dr. Lisak] told you, because we desperately need to play on your possible ignorance and your possible misunderstanding of rape myths.’ That is not a way we get to the truth, ladies and gentlemen. Manipulating the evidence, misrepresenting the evidence, is not a way we get to the truth.”
Joel Thompson pointed out that he sometimes prosecutes homicide cases. “A body speaks of how it was killed,” he said. “A drop of blood speaks of who left it.” In similar fashion, he said, the bruises and red marks on Cecilia Washburn’s body “speak to whose account is true.” The defense was trying to pressure the jury into believing otherwise, he argued, because “the defendant’s life hangs in the balance.”
Thompson cautioned the jury members against acquitting Jordan Johnson because they might be inclined to think, “The damage is done. I don’t want to ruin two lives—one is already ruined, let’s not ruin another.” Such reasoning would be wrong, Thompson said, because “considerations of sentencing or consequences outside of your decision [about guilt or innocence] are not in any way relevant to what is true. And we don’t look to you as much for justice…as we look to you for truth….Your only responsibility is rendering a true verdict. The harm done in this case was not done in this trial. It was done in the rape of Cecilia Washburn.”
To determine the truth, Thompson observed, “We have to rely on the evidence….And the best evidence is that Cecilia Washburn went in that room one person [on the night of February 4, 2012] and came out a very different person….It’s been suggested that maybe this was just a lie [by Washburn] that got out of control. Well, if that’s true, it would have to have been a lie concocted within…three to five minutes,” because she sent that troubling text (“Omg, I think I might have just gotten raped. he kept pushing and pushing and I said no but he wouldn’t listen”) less than five minutes after the rape allegedly occurred.
“So what you’re finally left with, ladies and gentlemen, is two stories of what happened in that room,” Thompson told the jury. According to one of these competing narratives, a young man in a relationship with another woman texts Cecilia Washburn because he wants to get laid and he thinks she is eager to have sex with him. “It’s Saturday night,” Thompson explains. “He’s had a few beers and his buddy says to him, ‘Get ’er done.’ ”
Cecilia Washburn, “on the other hand, is tired, unshowered, sleeping, takes no time to clean herself up, dress nice, or put on makeup.” Although she hoped to have sex with Johnson at some point in the future, she did not want to have intercourse with him that particular evening. “He thought he was having sex that night,” Thompson pronounced, but “she did not.” When Washburn made this explicitly clear to Johnson, he ignored her and raped her. “To the defendant, it was normal. No words, no talking afterwards. He goes into the bathroom, leaves the house, and the next words he utters to her are ‘Well, thanks,’ when she drops him off. He admits…her text message to Stephen Green doesn’t make sense. And he’s right: It doesn’t make sense.” Nor does the emotional distress witnessed afterward by Green, Thompson added, because Washburn’s reaction is inexplicable if she wasn’t raped.
Cecilia Washburn’s version of what happened, Joel Thompson continued, “involves the defendant changing, going from gentle and trusted to forceful and scary in a heartbeat. She’s in a secure, safe place, with a trusted person who would never harm her.” But then the defendant starts using force to get what he came for. “She says no,” Johnson continued. “She resists. She puts her knees up. She pushes him away.”
But Johnson was determined to have sex that night, so he raped her. And the trauma of that rape, Thompson said, “was written all over her the minute she left the room.”
The defense attorneys, Thompson said, “would have you believe that this unrebutted emotional reaction was either caused by a lack of snuggling or a realization that the man…wasn’t going to be her boyfriend.” But Cecilia Washburn was not in fact a woman scorned, “or hiding a pregnancy, or trying to get advantage in a child custody case, or any of the other reasons we might think someone would make a false allegation. She has no motive to endure what she and her family have endured in this last year. And what they continue to endure. She will not leave this courtroom all better. You saw it on her. You saw it on her friends and her family.
“Don’t let yourself be confused,” Thompson implored. “Attorneys know that confusion is the next of kin to doubt, because it feels the same way.” But the confusion the defense worked so hard to create “is not doubt,” he said. Cecilia Washburn’s only motive for reporting that Jordan Johnson raped her was to hold him accountable for what he did and to prevent him from doing it to anyone else. “That,” Thompson told the jury, “is your motive.”
CHAPTER TWENTY-EIGHT
Prosecutor Joel Thompson finished his rebuttal at 1:08 p.m. Friday afternoon, prompting Judge Karen Townsend to tell the twelve jurors to gather up their notebooks, head for the jury room, and
start deliberating. As the courtroom emptied, Jordan Johnson’s father leaned over the gallery railing and embraced his son.
Just after 3:30, an announcement was made that a verdict had been reached, and the people milling around the courthouse hurried back to the courtroom. For a jury to arrive at a verdict in less than two and a half hours after such a long, complex trial was highly unusual, and it took almost everyone by surprise. Because few had anticipated that the jury would finish deliberating so quickly, and most of the spectators had left the courthouse to have lunch, when Judge Townsend called the court back to order, the audience in the gallery was only about a third as large as the audience for the closing arguments. Johnson sat down at the defense counsel’s table, between David Paoli and Kirsten Pabst, betraying no emotion. Neither Cecilia Washburn nor any of her family were present to hear the jury’s decision.
A little before 4:00, the jury forewoman handed the verdict to the bailiff, who read it to the court: “We the jury, duly empanelled and sworn to try the issues in the above-entitled cause, enter the following unanimous verdict: To the charge of sexual intercourse without consent: We the jury, all of our number, find the defendant, Jordan Todd Johnson, not guilty.”
Raucous cheering filled the courtroom. Johnson, Paoli, and Pabst burst into tears and embraced. The Missoulian Twitter feed erupted with commentary, almost all of it expressing support for Johnson, Paoli, and Pabst and/or berating Cecilia Washburn: