Monday, June 17, 2013

Was a county attorney influenced by the 'public outcry' over rape to prosecute a college quarterback in a doubtful case? The county attorney said: “I can’t say the atmosphere in Missoula didn’t operate in my mind somewhere.”

On March 1 of this year, the sexual assault trial of University of Montana quarterback Jordan Johnson ended with an acquittal. After three weeks of testimony, it took the 12 men and women on the jury just a little over two hours to reach the "not guilty" verdict. The result didn't surprise those of us who followed the case from the beginning. An alternate juror's chilling words supported what this blog had thought all along: "The lack of evidence was troubling. The alleged victim's mixed messages and comments to friends cast doubt on allegations. The alleged victim even questioned events of the evening and there was no evidence that Jordan Johnson knew that he had sex without consent."

We openly wondered why the county attorney rolled the dice with a young man's life. This was not an unfair question to ask since the charges were brought, as the New York Times noted, "against the backdrop of a federal investigation into how officials at the University of Montana, as well the city and county of Missoula, handled sexual assault allegations, several of which involved members of the football team."

In addition, Kirsten Pabst, who was the chief deputy county prosecutor before entering private practice was one of Mr. Johnson's attorneys in the case. She said that the County Attorney’s Office charged Mr. Johnson with a sex crime just "to send a message." 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 showed that 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.

Last week, Fred Van Valkenburg, the Missoula County attorney made a startling comment about the case that shouldn't be ignored. Van Valkenburg was asked if he felt pressure to file a rape charge against Johnson, given the ongoing federal investigation and the results of an outside investigation that found 11 cases of sexual assault at UM between September 2010 and February 2012. Van Valkenburg gave the expected response: his entire staff had reviewed the case and felt there was enough evidence to proceed. “I honestly do not think we filed charges because of the DOJ investigation was pending,” Van Valkenburg said.

But Van Valkenburg added this: “I can’t say the atmosphere in Missoula didn’t operate in my mind somewhere” as he considered whether to file the charges.

Read those words again. A less candid person would have ruled out even the possibility of any external influence on his decision to prosecute and would have insisted that "the atmosphere" did not play any role in the decision. Van Valkenburg's remark is chilling for its candor. Was Van Valkenburg, in fact, influenced by "the atmosphere" in Missoula?  We can't get inside his head, but even he has opened the door to the possibility that, on a subconscious level at least, he might have been.

Innocence Project guru Mark A Godsey recently said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases." The "public outcry" that results when rape becomes politicized has been a cause of injustice to the wrongly accused likely since time began. One need not look back to the hanging trees of the Old South for such injustice. This blog has chronicled a veritable cornucopia of it in recent years.

We do know this about Van Valkenburg: he seemed bent on winning this case. He assigned five prosecutors -- count 'em: five -- including an assistant attorney general and an attorney in private practice, to pursue the case against Johnson. That win-at-all-costs mentality is troubling in a case where there was so much evidence in favor of innocence. Just to recap: you will recall that before the alleged sexual assault, Mr. Johnson and his unnamed accuser had previously been flirtatious, and at a university ball, 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 accuser told a close female friend the morning after the alleged assault that she "think[s]" she’d been raped “and that she didn’t want to report his name because" she, the accuser, "felt responsible." She 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." The woman’s male roommate and one of her best friends, testified that he was rattled when he got the text message from her that night that began, “omg … I think I might’ve just been raped.” At the trial, defense counsel asked him: “You did nothing to respond to her text. You were confused, the text was unclear to you, and you thought she was exaggerating.” The roommate answered: “Yes.” In another text message, the accuser told someone, "I don't think he [Johnson] did anything wrong." 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 a defense motion filed in the case, the text message said: "It will hit him like a ton of bricks which I'm okay with [emoticon smiley face] so wanna get lunch Thursday?" Dr. David Lisak, one of the nation's most famous rape victim's advocates, testified at the trial that while trauma could explain the changing stories of an alleged rape victim, lying could explain the same behavior.

So, we return to Van Valkenburg's comment, and we ask the obvious: how could an elected prosecutor not be influenced, on some level, by a public outcry to get tougher on rape? The decision to prosecute or not prosecute can be difficult; it's often a judgment call that requires the exercise of discretion. If loud voices in the town square are insisting that rape is rampant and that more convictions are needed, is it surprising that a prosecutor will exercise that discretion by erring on the side of prosecuting doubtful cases, especially when the target is the starting quarterback on the university football team?

Even more obvious: is it proper to prosecute a rape case because of a public outcry? The question scarcely survives its statement. Justice in the particular facts of the Jordan Johnson case had nothing to do with whether rape, in general, is rampant.  What happened to Jordan Johnson seemed less like "justice" and more like a witch hunt.