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Chapter 21 begins Part Five, “Trial by Jury.” On March 16, 2012, Cecilia Washburn reports Jordan Johnson to the police for sexual intercourse without consent, Montana’s legal name for rape. In August 2012, Missoulians are surprised to find that former prosecutor Kirsten Pabst is now one of Johnson’s defense lawyers. Krakauer describes how Pabst resigned as chief deputy Missoula County attorney to open her own law firm, and signed on to work as a joint member of Johnson’s defense team with David Paoli. She files to dismiss the case against Johnson for lack of probable cause, the same reason she resisted filing cases against alleged rapists when working as a prosecutor. Her motion is denied. In February of 2013, Beau’s former lawyer, Milt Datsopoulos makes statements to the New York Times and ESPN that, in the wake of Beau’s conviction, Johnson is unlikely to receive a fair trial. Pat Williams, a member of the Montana Board of Regents, makes a statement to the press that the football team is part of the problem on the UM campus, and UM football fans circulate a petition asking for Williams to be kicked off the board of regents.
Johnson’s trial begins on February 11, 2013. Special Deputy Missoula County Attorney Adam Duerk gives the prosecution’s opening statement. He says that the only person on trial is Johnson and that the only question is whether Johnson committed the crime of sexual intercourse without consent. He urges the jury not to be distracted by statements about the UM football team or about Cecilia Washburn. The main thing to consider is whether Washburn’s or Johnson’s story is more credible.
Krakauer analyzes Kirsten Pabst’s claim on her website that, as a prosecutor, she won 99% of her cases. He argues that the only way for a prosecutor to have such a high rate of success is if he or she avoids prosecuting cases that should be prosecuted. Then, Kirsten Pabst makes her opening statement for Johnson’s defense. She describes Johnson as quiet, reserved, and polite despite the fact that Johnson has done plenty of partying and excessive drinking. She describes Cecilia Washburn as a distressed child with a history of panic attacks and suicidal thoughts. Pabst says that Washburn only became interested in Johnson once he became the first string quarterback at the University of Montana. Washburn, she says, is only seeking attention.
Pabst is prohibited from mentioning that, on the night before she was raped, Washburn told Johnson, “Jordy, I would do you anytime.” Montana’s Rape Shield Law says that an accuser’s previous sexual conduct is inadmissible evidence in rape trials. Pabst then describes the night of the rape according to Johnson’s story, and says that Washburn was merely disappointed and uncomfortable with her and Johnson’s consensual sex. She was not raped. It is a case about a girl’s regret, Pabst says. She also blames attention from the media and federal investigators for creating frenzy on campus. Washburn, she says, saw the media frenzy and decided reporting Johnson was a way to get attention. She says Washburn wanted a relationship, and Johnson didn’t give it to her.
For Krakauer, Kirsten Pabst represents everything that is wrong with the legal recourse available for rape victims. Prosecutors are sometimes self-interested individuals who only pursue cases they feel they are likely to win. This is particularly disadvantageous to rape victims, Krakauer argues, because rape cases, especially when they reach trial by jury, are very difficult to win. Among the prosecutors examined in Missoula, Kirsten Pabst is especially self-interested and especially hypocritical. Her move out of the County Attorney’s Office and onto Jordan Johnson’s defense team is the first of several calculated political decisions she makes throughout the course of the book. Beau’s former attorney Milt Datstopoulos’s comments to ESPN reveal his allegiance to the UM football team. Contrary to Datsopolous’s statement, however, Johnson’s status as UM quarterback in a trial that is about to take place in Missoula works to Johnson’s advantage. Despite the rape crisis, the team is still beloved in Missoula. Fans refuse to tolerate statements by officials that don’t cast the team in a positive light. And, because Missoula has so many football fans, it is likely that jury members may consciously or unconsciously harbor allegiances to the team and its quarterback.
Because of the high-profile nature of Johnson’s case, several prosecutors make arguments for the state. Adam Duerk is the lead attorney on the prosecution’s team. In his opening statement, Duerk correctly anticipates that the defense team will try to twist Johnson’s trial to be about Cecilia Washburn’s reputation and about the reputation of the football team in general. Krakauer uses Beau Donaldson’s plea hearing to offset Jordan Johnson’s jury trial. Unlike in Beau Donaldson’s hearing, the defense needs to convince a jury, not a highly educated judge. To do so, Johnson’s defense will resort to any and every tactic available. It will mix emotional and rational appeals. Then, Krakauer uses Kirsten Pabst’s opening statement to illustrate how U.S. jury trials become legalistic theater. Pabst paints a picture of her client that is only partially accurate. Pabst doesn’t care about accuracy, only the effectiveness of her story in winning her client an acquittal. This is part of what Krakauer considers the most unfortunate side effect of American rape trials. In their theatrical attempts to defend their clients, defense teams are compelled to sacrifice rape victims’ dignity.
Despite the way jury trials abuse rape victims and exacerbate their trauma, Krakauer implies that Montana’s Rape Shield Law shows that improvement is possible. The law’s desired effect is to keep a rape victim’s previous sexual history from becoming the subject of a trial. The rapist should be the one on trial, the law asserts, not the victim. Nonetheless, Pabst is able to invent any narrative she wants to describe Washburn. The defense’s strategy is to create an alternative narrative, no matter how false, and hope that members of the jury will be taken in or confused by it. Even before Pabst’s statement, however, Krakauer has systematically dismantled Pabst’s version of events. Cecilia Washburn, according to Krakauer’s account, was definitively raped. In the days leading up to her encounter with Johnson, Washburn never expressed interest in being Johnson’s girlfriend. Attention from the media and from federal investigators has helped silenced victims to report their rapes and forced unwilling prosecutors to take difficult cases to trial. And, finally, contrary to Pabst’s story, Krakauer has shown how the attention victims receive after reporting high-profile rapes is anything but desirable.