Summary: Chapter 25
The prosecution calls Cecilia Washburn’s roommate Steven Green as a witness. Joel Thompson questions Green, and Green testifies that Washburn never talked about wanting Johnson as a boyfriend. Green says he didn’t know how to react when he received Washburn’s text saying that she thought she might have been raped. After she returned from dropping Johnson off, he says, she cried heavily. She said she didn’t want anyone to know what happened to her, but he urged her to go to the police. Thompson concludes his examination, and Kirsten Pabst cross-examines Green. Green testifies that Washburn has no desire to be a celebrity and, since the incident, only wants to be on her own.
At the end of the first week of the trial, Claire Francoeur, the nurse practitioner that examined Cecilia Washburn at the First Step sexual-assault resource center, takes the stand. Joel Thompson questions her. She says the findings of her examination were consistent with sexual trauma. A video taken of the damage to Washburn’s genitals is played for the jury. David Paoli cross-examines Francoeur. Paoli criticizes Francoeur for not reading medical literature he asked her to review. He tries to make Francoeur seem inept, and finishes his examination. Prosecutor Adam Duerk re-examines Francoeur. He asks if there is anything that leads Francoeur to think Washburn’s injuries occurred before the night of the rape. She says there is not. Paoli objects, the two lawyers are called to the bench. After the consultation with the judge, Paoli and Duerk stare each other down in the center of the courtroom.
Connie Brueckner, the lead investigator on the Johnson case for the Missoula Police Department, testifies next. When Paoli cross-examines Brueckner, he implies that she did not do enough to try to find evidence that might have proven Johnson’s innocence. Paoli suggests Detective Brueckner developed an improper friendship with Washburn. Paoli suggests that a protocol reminding Missoula cops to believe a victim of a sexual assault until all the evidence is gathered destroys the objectivity of investigators, but Brueckner denies this. Paoli and Pabst, says Krakauer, had previously filed a motion to dismiss the case based on the new police protocol, saying that the policy to believe a rape occurred when it is reported violates the presumption of innocence. But this second motion to dismiss the case was also denied. The presumption of innocence applies only in the trial of a crime, not in the police investigation.
Summary: Chapter 26
The defense begins to call its witnesses. First is team chaplain Michael McGowan. He testifies that Johnson is a respectful and humble young man, but admits, under cross-examination, that someone with these positive traits is still capable of committing crimes. After McGowan, Jordan Johnson takes the stand. Jordan is quiet and self-possessed and gives background on his relationship with his family. Court is adjourned for the day. The next day Johnson’s testimony is interrupted so that a character witness from Oregon, Pastor Rudy Herr, can give his testimony. He says Jordon is honest and has incredible self-control. After Pastor Herr’s testimony, Johnson re-takes the stand. Kirsten Pabst questions him. He says Washburn never did anything to show she withdrew consent during their sex and only said one thing to him, “Oh, you’re bad,” in what he characterized as an inviting tone. Washburn didn’t seem upset to him afterward, he testifies.
Next, prosecutor Adam Duerk cross-examines Johnson. He focuses on the time during the incident when Johnson was entering Washburn from behind. Johnson admits he had Washburn pinned on the bed. He says the sex seemed consensual to him and Washburn never withdrew consent. Duerk presses Johnson about the message Washburn sent just after the sex, in which she told Steven Green she thought she had just been raped. Johnson acknowledges it was not a normal thing to say. It would make sense if things happened the way Washburn said, Johnson acknowledges, but still denies her version of events. He agrees that a woman can change her mind in the middle of sexual intercourse. Johnson’s testimony ends, and his father, Marty Johnson, testifies next. He says their family is extremely close and that, short of losing a child, this kind of accusation is one of the worst things he can imagine happening to a family.
Analysis: Chapters 25 & 26
In Chapter 25, Krakauer shows how lawyers attempt to squeeze witness statements into their own preferred narratives. Though Kirsten Pabst and David Paoli have tried to use aspects of Stephen Green’s previous statements to cast doubt on Cecilia Washburn’s version of events, saying she ate a snack after her encounter with Johnson, Green’s testimony in the courtroom clearly supports the prosecution’s narrative. Green dismisses the motives the defense offers for Washburn’s behavior one by one. According to Green, Washburn was never hurt because Johnson didn’t want to be her boyfriend, she never wanted to be a celebrity, and she behaved from the first day onward in a manner consistent with her claim that she was raped.
Krakauer reiterates how invasive rape trial can be for the victims of rape. Washburn, for example, has a video of the inside of her genitalia shown to Johnson’s jury, a group of twelve strangers. As a nurse, Claire Francoeur’s job is not to review medical literature sent to her by defense attorneys. Her job at First Step is to document evidence of sexual assault and provide patient support. Krakauer illustrates, through Paoli’s cross-examination, defense lawyers do not limit their badgering to a rapist’s accuser. A defense lawyer might attack and smear any witness so long as he thinks that doing so might be beneficial for his client. Krakauer presents this as an unfortunate and outdated convention of U.S. trial court. In Chapter 25, Paoli puts on a colorful performance. He wants to prove that his belief in his client’s innocence is so strong it can lead him to the brink of physical confrontation with lawyers from the opposing team. What Krakauer shows is that Paoli’s strong belief is a performance, and his performance is one of his most effective tools for convincing a jury of his client’s innocence.
When David Paoli cross-examines Detective Brueckner, he uses the same personal attacks he has previously used against Washburn and Nurse Francoeur. Paoli’s arguments during this part of the trial are sexist. He creates a fictional world for the jury in which Washburn, Francoeur, and Brueckner are jealous women who band together to take down the star University of Montana quarterback. Women, Paoli’s arguments imply, are incapable of working together without developing inappropriate and unprofessional friendships. Detective Brueckner’s biased friendship with the victim, according to Paoli arguement, prevented her from doing everything in her power to find evidence proving his client’s innocence. Paoli knows that the presumption of innocence only applies in the courtroom. His motion to dismiss the case and his suggestions to Brueckner about the new police protocol are part of an effort to trick the jury. Paoli wants jury members to believe that law enforcement, like criminal courts, must presume the innocence of suspects. This is patently false. If law enforcement assumed that all suspect were innocent, they would never gather the evidence necessary to prove a suspect’s guilt. But in U.S. criminal courts, Paoli’s deceitful tactics are permitted.
Chapter 26 shows Krakauer’s commitment to recreating Johnson’s criminal trial as accurately as possible. By faithfully reproducing elements that diminish the drama of his narrative, like the interruption in Johnson’s testimony, Krakauer creates a documentary impression of the events that took place. The real-life scenario in which Washburn and Johnson’s supporters alike wondered how the jury would decide Johnson’s case has its own inherent suspense. Jordan Johnson’s description of what he terms consensual intercourse with Cecilia Washburn contradicts Washburn’s testimony and the message she sent, moments after her encounter with Johnson, which stated that she felt she might have been raped. It also contradicts Washburn’s anxiety and distress after the event, as reported by Green, and the physical evidence of trauma documented by Nurse Francoeur. Prosecutor Adam Duerk emphasizes these contradictions between Johnson’s testimony and the previously recounted evidence. Johnson is unable to account for the discrepancies or explain what is, in his version of events, Washburn’s erratic behavior. The way Johnson answers Duerk’s questions about consent shows Johnson in a positive light before the jury. Marty Johnson’s candid and emotional testimony on behalf of his son has a similar effect.
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