An attorney for a suspended University of Montana quarterback accused of rape says that if the state doesn’t immediately produce voluminous records – including the alleged victim’s medical and school records dating to when she was 5 years old – the case against Jordan Johnson should be dismissed.

On Tuesday, Missoula County Attorney Fred Van Valkenburg filed a response to an earlier defense motion to dismiss the case, calling it a “thinly veiled press release under the guise of a legal pleading.”

Johnson is charged with sexual intercourse without consent in connection with an alleged Feb. 4 assault on a fellow UM student as the two watched a movie at her home. He pleaded not guilty to that charge Aug. 7.

One of his attorneys, David Paoli, filed the most recent defense motion in the case Monday in Missoula County District Court. The motion asks the court to compel the state to provide discovery – evidence – in the case, or to dismiss the charge altogether.

The day Johnson was arraigned, defense attorney Kirsten Pabst sought to dismiss the case against him, contending that the state “cherry-picked” facts in charging him. Motions to dismiss are routine in high-stakes cases.

Pabst’s motion noted the “unfortunate context” of the current U.S. Justice Department investigation into how the county attorney’s office, the Missoula Police Department and UM police handled sexual assault cases over the last three years.

Until she left to start a private legal practice this spring, Pabst was chief deputy Missoula County attorney.

The state’s response to Pabst’s motion was due Tuesday, and it was filed on the dot of 5 p.m. “Rife with irrelevant, unnecessary, prejudicial and objectively inadmissible evidence,” Van Valkenburg termed Pabst’s motion, calling it an attempt to set up “a trial before a trial and ... potentially contaminating the jury pool in the process.”

Any notion that the Justice Department investigation influenced the decision to charge Johnson “could not be further from the truth,” he wrote, calling it “speculation at best” and “a desperate accusation.”

But to respond in detail would violate ethical rules on public statements about a case, he wrote.

***

Paoli’s motion contended that neither Assistant Chief Deputy County Attorney Suzy Boylan nor her discovery assistant returned calls he left them on Friday about discovery in the case that he requested on Aug. 9.

“Not only is the state jeopardizing Johnson’s defense by failing to produce discovery, but the state is jeopardizing this court’s deadlines,” Paoli wrote. “Further, if the state does not immediately produce all discovery materials, Johnson requests that the charges against him be dismissed based on the disadvantage that has been created by the state’s failure to produce the requested discovery.”

That information includes transcripts and videos of police interviews with several people, the medical and school records, contact information for every person who was with the alleged victim before, during and after the UM Foresters Ball on Feb. 3, and all text messages between the alleged victim and witnesses.

At Johnson’s arraignment earlier this month, Boylan expressed concern about her ability to sift through 1,000 pages of text messages in the case, many of which will need to be redacted, in time for court deadlines.

Paoli specifically seeks any counseling records from UM, and the school’s Sexual Assault Resource Center, as well as videos from her visit to the First Step sexual assault medical testing center. He and Pabst also seek to interview the alleged victim as soon as possible.

The counseling records are necessary because of the state’s contention that the woman suffered post-traumatic stress syndrome after the alleged assault, and because the woman also said she’d had panic attacks and PTSD years before the incident, Paoli wrote.

But Van Valkenburg responded that a pretrial motion is not “an appropriate way to make a claim that a rape victim did not act like a rape victim should. Trauma responses are complex, often counterintuitive to lay persons and require expert testimony.”

Neither Boylan nor Paoli returned calls for comment Tuesday. Johnson’s attorneys have until Aug. 31 to reply to Van Valkenburg’s response.

Johnson was the starting quarterback for the Grizzlies until the charge was filed, at which point he was suspended from the team.

Reporter Gwen Florio can be reached at 523-5268, gwen.florio@missoulian.com or @CopsAndCourts.

Missoulian reporter Gwen Florio can be reached at 523-5268, gwen.florio@missoulian.com, or @CopsAndCourts.

(55) comments

MontanaNative1ed7
MontanaNative1ed7

Eve Ensler wrote: "Spend your energy going after those perpetrators who so easily destroy women rather than parsing out manipulative language that minimizes their destruction."

I agree with this quote.

Bass Whacker
Bass Whacker

Ok, we get it, you are infatuated with a playwright who believes the universe revolves around her genitalia. This is a place for dialogue, original thoughts, not sterotyping quotes from a self-agrandized political monologue. About the only thing that can be taken from your quotes of Ms. Ensler is that like her, you are mad at the world you were born a girl, and blame men for that. Try this, assume all the facts set forth in this matter are the same except Mr. Johnson contends he said no, she mounted him anyway and now he is alleging he didn't consent and she raped him. What clever rambling of Ms. Ensler condemns all women in this scenario?

lakeguy406
lakeguy406

Someone will need to be made to fit a guilty plea, through all this County/U of M investigations. Just wish it was not JJ's that life gets ruined to be that scapegoat.
Mr. Van V's circus is the one that needs banished. He has ruined enough lives already.

Alan Johnson
Alan Johnson

I see the Missoulian has published the state's response on it's website under yesterday's story of the new defense motion. It seems it should be published with a story about the state's response. That said, there is nothing surprising in the state's response. It simply states the law regarding probable cause. The defense has an option to submit a reply. And it probably will. But it will make little difference. The Court will likely find no reason to reverse its own finding of probable cause. This is not a statement by me on the merits of the defense. But, as the state says, a pre-trial probable cause motion is not the forum to argue different versions of the facts. That argument belongs in a trial, where this case will undoubtedly wind up. It sounds like it will be one heck of a trial.

Mazola
Mazola

This is a case about nothing so far, except for media sensationalism, hype, etc. No one knows the facts yet, except for what has been published. And what has been published is still a "she said..he said" story, and nothing more.

Reading through the comments, i could almost swear that montananative.. and a couple other posters.ARE Gwen Florio. I wonder how many posts she makes under her own stories to "help bolster" her opinion? To try and sway public opinion for one's own agenda, while two young adults get placed under the public microscope, and (hopefully not) have their lives, and their families' lives turned upside down is downright mean.

The more you know!

MontanaNative1ed7
MontanaNative1ed7

I have never met Gwen Florio. I assure you of that.

"Why don't you spend your time ending rape rather than redefining it?" Eve Ensler

Mazola
Mazola

Thank you for you assurance.

I told my wife the truth. I told her I was seeing a psychiatrist. Then she told me the truth: that she was seeing a psychiatrist, two plumbers, and a bartender.
Rodney Dangerfield

Richland1
Richland1

The county DA whines like a 5th grader. What a weak response--I can hardly wait for the Defense's final response that should end this case in dismissal and send Fred to retirement.

Comment deleted.
MTDutch101
MTDutch101

Sounds like you are talking about getting your drivers license back, which is a CIVIL matter. Public Defenders are only available for CRIMINAL matters (i.e. those that could get you fined or incarcerated). So yeah, they could represent you for getting a ticket for not having a license, in which case I have NEVER seen a judge actually convict, fine or jail anyone, as long as they could get their license status straightened out, which would be YOUR responsibility, with the help of a CIVIL attorney if necessary. But I am quite certain that's been explained to you before. Public Defenders aren't just "free" lawyers to solve all your problems, you have to do some of the heavy lifting.

hellgatenights
hellgatenights

About darn well time. The "Trial by Media" is over...........now Fred you know the routine, you are to hand over all discovery materials to the defense so they can prepare.

The omission and delay of this procedure is both illegal and speaks to the strength of the County's case, or lack there of.

QUESTION: When ALL charges are dismissed against Jordy, should Engstrom be fired?

Answer: Yes! He and all is big mouth cronies working on my sweaty tax dollars. None of them will be missed.

Comment deleted.
montanablogger
montanablogger

What does this wall o'text whine have to do with this article?

AARGH
AARGH

I can't Resist.... So here it goes... was this a "legitimate rape"?
This is how I initially interpreted the quote above, until the media blew it out of proportion.
So if this girl happened to get pregnant, and then they find she's lying, Not guilty it the verdict... would it be "legitimate"?

jessie
jessie

Good Grief !
The justice system is not the entity that will prevent people from reporting rapes, it is this darn media circus that will prevent the reporting.

Comment deleted.
student4
student4

will reword that i am not atty, but it seems pub def clearly in receipt of funds to defend right, skills are required to provide a defense, those that walk among us might lack those skills

Comment deleted.
student4
student4

that is horrible representation by a atty from in office atty,

Payin'Taxes-Gettin'Hosed
Payin'Taxes-Gettin'Hosed

I don't read the comments beyond 2 paragraphs. Always seems like repetitive droning.

Anyone else?

Be succinct posters.

Alan Johnson
Alan Johnson

HMMM, if you didn't read beyond two paragraphs, how on earth would you know they are repetitive? ;-)

walter12
walter12

This whole thing was a setup from the beginning. Something happend that night and then this woman was brainwashed by certain hard core leftists to file charges (three months later). What does that tell you? This entire incident is not about rape, it is all political.

Been There
Been There

What a mess!! If this doesn't deter rape victims to report their experience to law enforcement agencies, nothing else will. There has to be a better way to do this. So far, the victim is on trial, not the accused rapist.

UMalumnus
UMalumnus

I am shocked -- or at least I should be -- by the contempt that people have for the right of due process and the justice system. Everyone has the right to a vigorous defense. However, there are some here who would deny Johnson that right. Is it a coincidence these seem to be same people who already have convicted him. The accused has the legal right to confront his accuser -- or haven't you read the Constitution of the United States?

ambiguous genitalia
ambiguous genitalia

I don't believe they care about justice or the constitution if they stand in the way of their not so hidden agenda

MiddleFinger
MiddleFinger

Why does this surprise anyone. Lawyers are the same as corporations. They will pursue their desired end regardless of the consequences. They will destroy themselves and anything in their path in the aimless attainment of the goal. Nothing else matters.

Dave is a great guy. I've known him for years. But he is doing his lawyer job which is to represent his client regardless of cost, regardless of collateral damage, regardless of public outcry for what's right. That is what his client pays for.

But what is the greater outcome? The same as any ruthless dictatorial government. It induces fear, hiding, and hopelessness. There is nothing unusual about this rape. It is classic textbook just as is the legal defense. And everyone loses.

If Missoula and the U of M ever wants to move beyond this dark cloud of malformed interaction, then it will need to handle the allegations with more than kid gloves and legal mumbo jumbo. It will need to pound the living daylights out of the criminals and hold a public prison cell door slamming ceremony stating for all time that Missoula is not friendly to rapists.

Until then, I guess this is just yet another grave injustice alive and well in the Garden City.

Bittersweet
Bittersweet

So Van valkenburg needs to dig deep to produce what is requested of him but this young lady is immune?

.........

Don't get me wrong. I am still uncertain if Jordan is guilty or innocent of what he has been accused of. I wasn't there.....and I (we) know very little at this point. I just seems to me thanks to Gwen (Gwen pats herself on back) this young man had been judged guilty by many of you as soon as the "restraining order" so called news story was published.

Bandit218
Bandit218

So I find it a bit disturbing that the defense wants to sit down with the alleged victim. Maybe JJ can ask some questions too.

MontanaNative1ed7
MontanaNative1ed7

The University of Montana has a culture where the privileged football players take sex whenever they want it. Then the city criminal defense attorney fans with political power free them. The University blindly allows the careers of football players who violate/abuse sexually to go on, while the lives of the students they violated are destroyed.


Bittersweet
Bittersweet

Really Montananative1ed7? Please elaborate. Those are some stiff accusations. Do you (think) you know something we don't?

MontanaNative1ed7
MontanaNative1ed7

"over half a billion women on the planet are raped in their lifetime." Eve Ensler

The way this rape victim is being handled is a form of "re-rape" to all victims.


The underlying assumption of asking for her records is "that women and their experiences are not to be trusted." (Eve Ensler) The victim's "understanding of rape must be qualified by some higher, wiser authority. It delegitimizes and undermines and belittles the horror, invasion, desecration they experienced. It makes them feel as alone and powerless as they did at the moment of rape."(Eve Ensler)


WHY IS IT THAT IN MONTANA NO ONE WANTS TO REGULATE GUNS, everyone wants to regulate a rape vicitm's body and psychology?


Our legal system would rather destroy vicitms. Not destroy rape.

Roger
Roger

Ever hear of the Second Amendment - the right of the people to own and carry guns? You evidently have already convicted the alleged perpetrator before he has had his day in court, since you refer to the alleged victim as the "victim". That of reveals the kind of person you are.

MontanaNative1ed7
MontanaNative1ed7

perpetrator"S" not perpetrator

victim"S" not victim

MontanaNative1ed7
MontanaNative1ed7

"More than 1 out of every 3 women on this planet will experience violence during her lifetime. With 7 billion people on the planet, that's one billion women. " said Eve Ensler.

Pistol
Pistol

The issue to me is no one's name should be exposed until formal charges are filed. If the charges are dropped or accused is found innocent the name of the person who filed the charges should be revealed. Now the accused's name is ruin before any formal charges.

Alan Johnson
Alan Johnson

You misunderstand mandatory duty to disclose evidence in criminal discovery, at least a bit of it. Not meaning to be critical. The state has to release evidence it holds that is relevant to the proceeding. Likewise, the defense has a duty to disclose its evidence. Undisclosed evidence can't be used at trial. The state especially has to turn over any exculpatory evidence, that is, any evidence that might be in the defendant's favor. The alleged victim's sexual history is not necessarily evidence the state holds. In addition, the alleged victim's sexual history cannot be used at trial except sexual history with the defendant. Presumably in a criminal case, the defense would already know of sexual history between the alleged victim and defendant. A exception might be evidence that goes to the credibility of the victim. Apparently, at least from the news story, the issue here is volumes of text messages, which the state has already said it may need more time to go through. Though the defense is demanding dismissal as a remedy for untimely disclosure, the remedy most likely will be additional time to produce the evidence, with that time not charged against the defendant for speedy trial purposes. The state has a duty for a speedy trial. In Montana felony cases, there is not a hard and fast line. In misdemeanors it is six months from the filing of the complaint. By Montana case law, a speedy trial analysis may be undertaken after 270 days, with the court looking at such issues as to who caused the delay, the state or the defendant as well as (1) length of delay;  (2) reason for the delay;  (3) defendant's assertion of the right;  and (4) prejudice to the defense.. Part of the analysis can look at whether the defendant is in pre-trial incarceration or not. A defendant held in jail is considered to be more disadvantaged than one who is not. In this case the defendant is not in custody.

A court order for full and continuing discovery does not occur until the omnibus hearing, which is yet to be held in this case. The omnibus is a routine housekeeping hearing where pre-trial motions are noticed to the court and briefing schedules are set and the trial date set. The discovery order is part of the routine omnibus form. So the motion may be deemed premature. It is an unusual motion at this early juncture of the case, but then this is an unusual case.

sportscaster
sportscaster

This whole thing still begs the question of why the charge was filed BEFORE the 1,000 pages of text messages were "sifted" through. Especially since the county attorney's office had the police investigation report for weeks and weeks before the charge was filed. As for the comment about rape shield laws, the only problem with them is that they do nothing to shield the "alleged" perpetrator. In this case Jordan Johnson was tried and convicted by the media starting with the filing of a initial temporary restraining order. Fairness has to apply to both sides in ANY legal matter, and it certainly hasn't applied to both sides in this case.

Bittersweet
Bittersweet

"This whole thing still begs the question of why the charge was filed BEFORE the 1,000 pages of text messages were "sifted" through"....hrmmmm. That's an awful good question. At what point were the text messages available? I'm asking....because I'm not certain anymore. I just read the Missoulian for unbiased news reports. (gags a lil in back of mouth)

montanamuralist
montanamuralist

Yes I agree. 1,000 pages they are not clear they will get through and still filed charges first. Van Valkenberg's response does not ring true to me. Sounds like Johnson is getting a good defense and they are trying to get to the facts...not to mention the idea that about 40% of rape accusations turn out to be false. Postpone and go through the documentts. A judge will not dismiss right now because of the volatile atmosphere surrounding this case...

Larry Lewis
Larry Lewis

Is it just me or is Atty. Paoli starting to look like a heavy-set Don Henley?

Aberdeen
Aberdeen

Who cares what he looks like - it's what's between his ears that matters in Court.

saltine
saltine

Sounds like grandstanding & applying maximum pressure to get the plaintiff to back down. Why on earth do they need school & medical records from when the alleged victim was 5? Despite the MRAs who will no doubt show up to yell at me, false rape accusations are really not that common. I admire the courage it takes to pursue a case like this as a plaintiff, because of the negative exposure.

Bass Whacker
Bass Whacker

"False rape accusations are really not that common" Actually, they are, especially on college camuses.

A feminist writer, Wendy McElroy, who investigated the incidence of false rape claims, found the rate approaches 40%, with one study on false reports at two universities putting that figure at 50%.

Ms. McElroy investigated the claim that "Forty-one percent of all reports are false."

This claim comes from a study conducted by Eugene J. Kanin of Purdue University. Kanin examined 109 rape complaints registered in a Midwestern city from 1978 to 1987.

Of these, 45 were ultimately classified by the police as "false." Also based on police records, Kanin determined that 50 percent of the rapes reported at two major universities were "false."

Ms. McElroy concludes:

But even a skeptic like me must credit a DNA exclusion rate of 20 percent that remained constant over several years when conducted by FBI labs. This is especially true when 20 percent more were found to be questionable.

False accusations are not rare. They are common.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada."

The accusers' records will show whether events in her past might lead her falsely report rape such as if she has made a false accusaton in the past, described rape fantasies to prior psychologists, etc. Not saying there is anything there for this accuser but the defense is entitled to discover anything in her past which could bear on her propensity to make a false accusation as the defense claims is occuring. The prior documents release in this case on her already show significant prior and even ongoing mental health issues, which due process dictates are relevant to credibiity and discovery by the defense in most cases. In short you are seeing good lawyering in this case from the defense. The rush to file charges and failure to provide documents the prosecution possesses shows terrible lawyering by the prosecution. If this misconduct continues I wouldn't be surprised to see a dismissal within the month.

student4
student4

. the county atty expressed concern over her ability to sift through txt with reasons being redacted material.

Tracker
Tracker

Exactly. This tactic of trying to intimidate an alleged victim is exactly why rape shield laws were enacted. Montana acknowledged that proceedings must not become a "trial of the victim" in State v Anderson. Demanding records from the girl back to age 5 seems far outside the acceptable scope of evidence of her history with the alleged rapist or instances of sexual activity that would explain physical evidence at the time of the alleged rape..

Paoli's request reeks of sleeze, IMO.

Bittersweet
Bittersweet

Well if these documents/this information was formally requested as part of discovery it should be produced or the court will need to rule that the information requested is not relevant and omit it (or certain items) from the discovery request. (I think) There are deadlines, and they are for a reason. Should the deadlines not be met I am guessing an extension (for good reason) must be requested and granted. Should the judge not rule that discovery requests be ommited or that an extension be granted.....oh boy. Not sure what happens then.

..........

Saltine.....I am not certain if it is common practice to request documentation so far back but at one point in my life I went through almost 4 years of litigation (not a criminal matter) 5 attorneys involved, 2 settlement conferences, 3 days in the courtroom...etc etc...I was forced to gather information and documents from over 15 years prior....kind of hard to do but I did as these items were requested as part of discovery. I fufilled every request (over 1000 pages) as I had nothing to hide......no secrets, no suprises, nothing that would shed negative light on my case. Was it a bullying tactic? I am certain it was. Was I intimidated or did I back down? Not an inch. Again....I had nothing to hide. Should the alleged victim have nothing in her past that may be perceived as a check mark against validity of her claim, there is not any reason why these documents should not be produced. It's due process. Do you think Jordan was thrilled about exposing his scenario as to how the events unfolded. It was very intimate, personal and embarrasing I would think.

..............

With that said I do not know if Jordan is guilty or not of the crime he is charged with. Still a he said....she said. My guess (based on what has been printed here in the Enquirer) is that this would be a hard conviction. I'm still up in the air about if charges should have even been filed at all. Tough call being under the scrutiny of the Nation.

Alan Johnson
Alan Johnson

Remember though, The duty to disclose pertains to evidence the state actually has. The state has no duty to do the defendant's investigating. Even if the alleged victim's past sexual history were relevant, (and there are almost no circumstances in which it would be) the state has no reason to have it. It is not relevant to the charges the state has filed. The state is not bound to go out and look for evidence the defendant might want. It is only obligated to release evidence it has.

Tracker
Tracker

"Should the alleged victim have nothing in her past that may be perceived as a check mark against validity of her claim, there is not any reason why these documents should not be produced. It's due process."

No, that's not "due process." Do you think a girl's academic records from kindergarten are within the scope of a rape investigation?

Bittersweet
Bittersweet

I obviously do not have a law degree hanging on my wall so I must admit I am not certain if this is normal or not. I DO know I was required to produce tons of information/documents that had absolutely no relevance to anything in my case. What scholarships was I offered from universities over 20 years ago? Did it matter? Not in my mind.....but then again, I didn't have anything to hide.

b406
b406

Wait, his co-counsel went from defending the public and prosecuting for the community to defending alleged rapists? Man this system is warped, i mean people have rights and freedoms but just seems messed up. I wonder if there will be any "back-scratching".

Aberdeen
Aberdeen

We should focus on the "what" and not the "who". Johnson's defense lawyer is doing her job, nothing more. Stay on focus about the fact that the Missoula County DA has had the case for many months and has yet to review 1000 pages? What about the Constitutional requirement for a "speedy trial"?

Alan Johnson
Alan Johnson

I wonder what the holdup is. By Montana law, there is full open and continuing discovery in every criminal case. No one gets to "hide the ball," to quote long time UM Law evidence profession Duke Crowley.

Tracker
Tracker

That doesn't mean the state is beholden to unreasonable discovery requests.I can't imagine a judge finding an alleged victim's history back to age 5 reasonable.

Bass Whacker
Bass Whacker

You've been "Florioed" The Defense request is primarily for documents, witness names, e-mails the prosecution has had for 7 months and is duty bound to turn over but hasn't, not the victim's records. These withheld documents and investigative information is what is driving the request to dismss. The accuser's records are the subject of fair debate about how far is too far, but none of the other records are. Moreover, the prosecution's statement they are the arbitur of appropriate "redaction" of the 1000's of e-mails is another stretch by that office. keep in in mind it is the accusers' own words in her texts which puts her prior records at issue in the case.

Tracker
Tracker

Agreed on every point, except that the motion apparently includes school and medical records for the alleged victim back to age 5. That was the reason for my comment.

I haven't seen the motion, but I have no reason to doubt that the story is accurate.

familytruckster
familytruckster

The correct word is "arbiter" and if you read the pleading, the defense is in fact requesting "Jane Doe's" medical records that have yet to be turned over per the discovery requests.

Bass Whacker
Bass Whacker

I said "primary" reason, not sole reason for the defense motion as the story wrongfully implies. And if you read the charging information it is the prosecution which alleges PTSD on the part of the alleged victim and which puts her mental history into the case. Don't blame Mr. Jordan's team for requesting all evidence on an issue that didn't need to be in the case, but was gratuitously added to make the alleged crime seem more heinous and charges seem more valid. This whole situation has been incredibly tarnished from the get-go by this paper and this reporter for the single reason Mr. Johnson plays football for UM. We are told there can be no guilt by associaton on the GLBT community when GLBT Missoulians file false claims of hate crime attacks, but apparently guilt by association is routinely practiced and acceptable in Missoula and the Missoulian if it involves allegatons against a UM male athelete.

familytruckster
familytruckster

If the discovery request was unreasonable, the state should have claimed so when the request was made. Otherwise, Alan Johnson and Aberdeen are spot on: the state has had ample time. The defendant is entitled to address the charges against him in a timely fashion.

And yes, the alleged victim may in fact have a medical history that is germane to the case. The woman's history of depression has already been introduced. Anything untoward or unusual may be an indicator of something that may relate either to her veracity in the current instance, or to some deeper psychological issue.

Alan Johnson
Alan Johnson

Made one misstatement: The time for speedy trial starts running when the defendant enters a not-guilty plea, not from the date of the complaint.

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