Summary: Chapter 27

The prosecution’s witness, Dr. David Bell, whose testimony is not described, testified that Cecilia Washburn’s symptoms matched all the criteria for Post-Traumatic Stress Disorder. Kirsten Pabst and David Paoli call their own psychiatrist, Dr. William Stratford, to the stand. Dr. Statford testifies that Washburn’s symptoms do not amount to the level of post-traumatic stress. March 1, 2013 is the final day of the trial. Prosecutor Suzy Boylan gives the prosecution’s closing argument. She says the case is essentially about the difference between being raped by a stranger and being raped by a friend. She stresses the state has to prove the defense beyond a reasonable doubt, not beyond the shadow of any possible doubt. Jordan Johnson, Boylan argues, left two kinds of marks on Washburn, physical and a psychological. Though Johnson may be “a decent young man,” he committed a crime and deserves to be punished.

David Paoli makes the closing arguments for the defense. He says that the truth does not require an expert from Boston. He cites Washburn’s text message in which she says she thinks she may have been raped. If Washburn didn’t know if she had granted consent, he says, how could Johnson have known? He uses a flat cardboard cutout sixty-eight inches tall (Washburn’s height) and tries to demonstrate that Johnson could not have held Washburn down in the way Washburn describes, crudely reenacting her rape. He says that Jordan Johnson is on trial because of his status as the UM quarterback. Paoli ends his statement, and prosecutor Joel Thompson gives a rebuttal. No expert in the world, he says, would have been good enough for the defense. He says that Paoli and the defense are trying to prey on the jury’s ignorance and misunderstanding of rape. Johnson was determined to have sex on the night in question and didn’t take no for an answer. Jordan Johnson can’t explain Washburn’s text message because the text message, says Thompson, only makes sense if she was raped. He concludes his rebuttal.

Summary: Chapter 28

After Thompson’s rebuttal, the twelve jurors go to the jury room and deliberate. They reach a decision in less than two and a half hours, so quickly many have not returned to the courtroom from lunch. Jordan Johnson is pronounced not guilty. Fans begin posting messages supporting Johnson on the Missoulian Twitter feed. Many say derogatory things about Washburn, some insist that “women who falsely accuse men of rape should be thrown in prison.” After the trial, reporter Gwen Florio asks Missoula County Attorney Fred Van Valkenberg what he thinks of the outcome. He says that it is a “not guilty” verdict, not an “innocent” verdict. Kirsten Pabst writes on her blog that the attorney’s office prosecuted a case that lacked legal merit.

After the trial, Joanne Fargo, one of the seven women in the jury, tells Krakauer about the deliberation process. She thinks Johnson might have raped Washburn, but she also thinks the defense raised reasonable doubts about whether Johnson was aware the sex was non-consensual. Johnson’s claim that Washburn moaned, Fargo said, had a noticeable effect on the jury. Though Fargo thinks the jury made the right decision, she says she found Paoli and Pabst’s way of practicing the law to be very frustrating and theatrical. She says that serving on the jury was a trying and exhausting ordeal. People insisted on giving her their opinions throughout the trial. She saw that, among most people, a very old concept of rape prevails. People think, Fargo says, that for a rape to occur, a stranger has to leap from the bushes or that a victim must try to fight her assailant to the death.

Analysis: Chapters 27 & 28

In Chapter 27, Kirsten Pabst and David Paoli try to diminish Cecilia Washburn’s pain and suffering in the eyes of the jury. They argue that, if Cecilia Washburn’s psychological response to her encounter with Jordan Johnson does not amount to the clinical definition of post-traumatic stress, then she must not have been raped. Though many rape victims experience post-traumatic stress as a result of their encounters, it does not stand to reason that a victim must be clinically diagnosed with post-traumatic stress disorder (PTSD) to prove he or she was raped. Because the prosecution’s expert and the defense’s expert are split on the issue, it is unlikely that that the clinical standing of Washburn’s suffering and stress had much effect swaying the jury. Suzy Boylan’s closing statement reiterates both the prosecution’s argument throughout the trial and Krakauer’s argument throughout Missoula. Our false understanding of and myths about stranger rape, Boylan argues, should not prevent us from punishing those who rape their friends.

Next, Krakauer contrasts Boylan’s methodical, deliberate, and well-reasoned closing statement with David Paoli’s theatrical, emotional, and absurd performance. First, Paoli deliberately misinterprets Washburn’s text message. As Krakauer has argued, Washburn’s saying “I think” in the message is a sign of her struggle to come to terms with the trauma of being raped, not a sign she was uncertain about not giving consent. Nevertheless, confusion over this aspect of not granting consent, the idea that “no means no,” has led some countries, like Canada, to require affirmative confirmation for sex to be considered consensual. In this “yes means yes” model, if both sexual partners don’t actively grant consent, then, legally, their sex is considered non-consensual. When Paoli uses a flat cardboard cutout to try and refute the prosecution’s account of the way Johnson held Washburn on the bed while raping her, he deliberately ignores key facts. Both Johnson and Washburn said that Washburn’s knees were bent. Paoli’s deliberate misinformation is part of the theater of criminal defense. Throughout the closing statements, Krakauer implicitly questions the reader as to which method of practicing the law the reader finds more appropriate.

The not guilty verdict for Jordan Johnson’s rape trial is consistent with the result of most acquaintance rapes tried by jury. Because it is so difficult to prove that someone withdrew consent during sexual intercourse, few prosecutors are able to show that a rape took place beyond a reasonable doubt. Fred Van Valkenberg’s comment that a “not guilty” verdict is not an “innocence” verdict gets right to the point. The standard of evidence required in U.S. criminal court is very high, especially for rape cases, where the physical evidence of rape can look extremely similar to physical evidence of consensual sex. Unfortunately, the comments made by Missoulians on online forums after the trial illustrate just how uneducated many Americans continue to be about rape and the U.S. legal system. It does not follow that, because Johnson was found not guilty, Washburn falsely accused him of rape.

Jury member Joanne Fargo’s comments to Krakauer about the jury’s deliberation process are illuminating. Fargo shares many of Krakauer’s opinions about the theatricality and inappropriateness of Paoli and Pabst’s defense. It remains unclear whether the one strong doubt for the jury—that Johnson may not have known that Washburn did not give consent—seemed more compelling because of the backdrop of Paoli and Pabst’s many false and implausible arguments for what took place. Though Fargo shows herself to be extremely well informed about acquaintance rape and the legal system, she reiterates Krakauer’s concerns about the prevalence of rape myths in America and the need for better education on the subject.