Thursday, August 9, 2012

Ex-county prosecutor says prosecutor bowed to pressure from victim's groups and charged a student with sexual assault just "to send a message"

The U.S. Justice Department is investigating the University of Montana's and the local Missoula County Attorney's response to reports of sexual assault on campus. The County Attorney is being bashed in the local media for not adequately responding to sexual assault reports, and victim's groups are scrutinizing the County Attorney closely.

In this climate, what does the Missoula Couty Attorney's Office do? According to Kirsten Pabst, who was the chief deputy county prosecutor before entering private practice this spring, the County Attorney’s Office has charged a University of Montana student with a sex crime just "to send a message."

The man the County Attorney's office chose to target is high profile: he is the University of Montana's suspended quarterback, Jordan Johnson (Mr. Johnson was suspended because of the charges in this case) who was accused of rape after a sexual encounter with a friend back in February. The County Attorney has charged Mr. Johnson with the crime of "sexual intercourse without consent" even though, Ms. Pabst alleges, it lacked probable cause.  "The collateral damage to Jordan and his family is immeasurable," she said.

If Ms. Pabst's allegations are true, the Missoula County Attorney's actions are among the most egregious, and unjust, we have ever seen, and that is saying a lot.

Ms. Pabst has filed a Motion to Dismiss on behalf of Mr. Johnson that repeats, paragraph for paragraph, the state's affidavit of probable cause to charge Mr. Johnson, and then adds additional information where appropriate that, Ms. Pabst says, the state intentionally omitted -- information taken directly from the state's and the university's investigations.

The picture painted by the Motion to Dismiss indicates that the County Attorney took a garden variety "he said/she said" rape accusation and improperly credited some, but not all, of the statements of the accuser while ignoring substantial evidence that shows no sex crime was committed. Ms. Pabst says that the County Attorney's office "cherry-picked" facts because of the pressure to respond to sexual assault.

On top of that, Ms. Pabst asserts, the County Attorney's office improperly released incomplete information to reporters. The result: “The world had been told that Jordan is a rapist and regardless of an eventual acquittal, that will never change.”

The actual motion can be read here:

The Motion to Dismiss is stark and, if true, shows the evidence could not support a charge of sexual intercourse without consent. Mr. Johnson and his unnamed accuser had previously been flirtatious, and at a university Ball this past February 3, the woman told Mr. Johnson – according to Mr. Johnson and a friend who said he heard it – “Jordy, I would do you anytime.” They eventually went to the house where the accuser lived with male roommates (one of whom was right outside the room) and had sex. The Motion to Dismiss details the information about the encounter that it says the County Attorney's omitted  at pages 5 and 6 -- the information indicates a consensual sexual encounter. 

In addition, the accuser told a close female friend the morning after the alleged assault that she thought she’d been raped “and that she didn’t want to report his name because" she, the accuser, "felt ‘responsible.'" According to the Motion, “in written statements obtained by Jordan’s attorneys, [the accuser] said, ‘The reason I feel this whole situation is my fault is because I feel like I gave Jordan mixed signals which caused him to act the way he did.'"  In a later text message, she told someone, "I don't think he [Mr. Jordan] did anything wrong to be honest . . . ."  But, in a most cruel and bitter text to a friend, she expressed happiness that he was going to be charged with rape -- according to the motion the text message said:

A prosecutor is the gatekeeper of justice who should only bring charges, as Prof. Bennett L. Gershman has described it, when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt. To bring charges when there is any less certainty does not fulfill the prosecutor's duty to do justice but invites miscarriages and the possible conviction of an innocent defendant. A prosecutor does not do justice when he or she rolls the dice on disputed evidence in the hope of "getting lucky" with a conviction or, more likely, a plea to a lesser charge. Sometimes, prosecutors bring charges just to appease politicized interests.

We need to watch this case very, very closely. If the Motion to Dismiss is accurate, the County Attorney has committed a grotesque injustice that has unfairly maligned a student, likely beyond repair. These allegations should be a source of grave concern to all persons of good will.