The Missoula County Attorney’s Office was trying to send a message that it takes sexual assault seriously when it “cherry-picked” facts in charging suspended University of Montana quarterback Jordan Johnson with rape, a motion to dismiss that charge claims.

The motion filed by Johnson defense attorney Kirsten Pabst contends the state’s complaint against Johnson omits critical facts, that incomplete information was improperly released to reporters and that Johnson’s right to due process was violated.

The result: “The world had been told that Jordan is a rapist and regardless of an eventual acquittal, that will never change,” wrote Pabst, who until this spring was the chief deputy in the Missoula County Attorney’s Office. Defense attorneys routinely file motions to dismiss in high-stakes cases.

Johnson pleaded not guilty Tuesday in Missoula County District Court to a charge of sexual intercourse without consent. He’s accused of raping a woman while watching a movie with her at her house on Feb. 4.

Pabst filed her motion late Tuesday afternoon.

The motion notes the “unfortunate context” of the current U.S. Justice Department investigation into how the county attorney’s office, the Missoula Police Department and the UM police handle sexual assault cases.

“Understandably, the state would like to demonstrate its reflexive and compassionate response to victims of sexual crimes and demonstrate to the community at large that the county’s hard-line stance against sex crimes is having a deterrent effect,” Pabst’s motion said.

The state could have chosen any number of cases to make that point, it argues, but Johnson’s isn’t one of them.

“When all relevant facts are taken into account and the portrayal of the event is corrected and fleshed out, an entirely different picture emerges of the sexual event between Jordan and ‘Jane Doe’ on Feb. 4,” according to the motion.

***

The motion includes the narrative of events presented in Assistant Chief Deputy County Attorney Suzy Boylan’s affidavit of probable cause, interspersed with what it terms new information – although it says the state was aware of some of it when the complaint against Johnson was filed July 31. That information comes from state and university investigations, according to the motion.

Among the motion’s contentions:

Johnson and the woman were in a sexual situation last year, but he stopped his advances when she told him no.

Between December 2011 and January 2012 Johnson and the woman exchanged texts that were “flirtatious and sexual in nature.”

At UM’s Foresters Ball on Feb. 3, the woman told Johnson – according to Johnson and a friend who said he heard it – “Jordy, I would do you anytime.” The woman was intoxicated, the motion said.

The woman told a close female friend the morning after the alleged assault that she thought she’d been raped “and that she didn’t want to report his name because she, Jane Doe, felt ‘responsible.’ ”

And, according to the motion, “in written statements obtained by Jordan’s attorneys, Doe 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 motion also includes the allegation from the state’s complaint that Johnson became aggressive after they took off each other’s shirts. “She started to get scared and told him, ‘No, not tonight,’ repeatedly.” Then he raped her, the state’s complaint alleges.

Pabst’s motion adds a narrative from Johnson in which he describes a consensual sexual encounter during which the only thing the woman said was “ ‘Oh, you’re bad!’ in a flirtatious tone.”

***

The motion to dismiss contends that “the prosecutor’s discretion has been compromised by external factors and the prosecutor has intentionally withheld mitigating evidence, skewing the finding of probable cause.”

“One certainly cannot fault the state for giving in to this external pressure, but the mitigating evidence omitted from the initiation of this case is prima facie proof the prosecutor’s discretion has been constitutionally compromised,” the motion said.

Those omissions, Pabst wrote, inappropriately bolstered the “complaining witness’ ” credibility.

Without naming names, it also takes the county attorney’s office to task for providing the complaint to members of the media. Such complaints are public documents, and are frequently provided to news outlets covering major cases.

However, they rarely if ever come directly from County Attorney Fred Van Valkenburg. His email to members of the media, with Boylan’s complaint and affidavit attached, is included in Pabst’s motion.

The county attorney’s office has until Aug. 21 respond to the motion. The defense must reply by Aug. 31.

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

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(47) comments

LittleFawn
LittleFawn

I am not up to date on this whole case but I totally agree with some of you readers. I just have to state my opinion on what I think has happened, from the lil that I have read. There have been many woman who have accused the football players of rape. So this is what I think, this "Jane Doe" wanted more than a one night stand and he didn't want that so she thought she would pay him back and cry "rape". I mean come on, if your raped wouldn't you go to the hospital for the evidence. Also why is it that woman are always the victim, a woman is capable of raping a man. Than really to bring him home after all this is this true? If she was raped she would of been to shookin' up to even drive (my opinion). I think it's another case of "the lil' girls who cried wolf". The sad thing about this is if/when something like this truly happens they won't believe the victim because of the past cases. Bottom line if your raped you report it right away and go to the hospital. Everything is about having that physical evidence. If it did happen I feel sorry for her but if it didn't "shame on her".

jessie
jessie

I believe that all reporters for the Missoulian are biased, not only Ms. Florio. I note when I read/hear the "news", that any situation I have prior knowledge of is dramatically changed when entered into the media. I am truly sorry that people's lives are scrutinized before they have a chance for a fair trial. I don't know how a fair jury can be seated on this, or many of the cases that seem to get tried in the media instead of courtroom. I don't think the public should be privy to all this information before the defendant has had his/her day in court.

Richland1
Richland1

I think the response from Jordan's attorney says it all--this case should never have been filed for trial---I can hardly wait to see the DA response--which should be followed by the defendant's and then the judge should send this case to the shredder............

independent mind
independent mind


I have to agree strongly with 'Roger' and 'Missoula Mom'.
I am female but am appaled how these "rape" cases are handled by having the alleged perpetrator exposed, labeled and condemned before he even has a chance to defend himself! Meanwhile the alleged victim gets her privacy and is assumed to be innocent and truthful in her statements. This is not how our court system was intended to work. Rape is a horrible crime but cases like this simply cheapen and exploit the system. These allegations should not be made public until they have been tried in a court of law. Otherwise the real victim is often the accused and the perpetrator is too often the alleged "victim".

Cato
Cato

And you are right. Only in "rape" cases are presumptions reversed. The alleged perpetrator is on front page, the alleged victim gets to hide in the shadows. The presumptive purpose? To avoid discouraging rape claims. The actual result? To enable fraudulent claims and worse, repeated fraudulent claims. There are in fact serial rapists. There are also serial rape accusers. That is well hidden by the system for no good reason.

Alan Johnson
Alan Johnson

Actually the practice of not naming rape victims dates way before anyone was concerned about not discouraging rape claims. The reason was that being a rape victim was a matter of shame and embarrassment. As newspapers began to debate whether to continue the tradition of not naming rape victims, rape victims testified that being named in the newspaper was like being raped twice. So virtually all newspapers still hold to the tradition. Feminism had nothing to do with it. This tradition of not naming victims goes way back to the days that rape was considered violation of a husband or father's property rights over a wife or daughter. Then, a rape put the whole family in shame.

goldstd
goldstd

walter is right on.....and the doj from dc sent by holder and obama should be ashamed for violating human rights and freedom....that is, if we have any left

goldstd
goldstd

gwen florio....has to be the most biased writer i have seen in a long time...."defense attorneys routinely file to dismiss in high-stakes cases".....uh like uh...is she reassuring the readers not to worry that the motion wont be allowed and the lynching will continue forward....the liberal media must love her

Alan Johnson
Alan Johnson

Well, she's right. Motions to dismiss for lack of probable cause raised sometimes, but I don't know of one that has been granted. The problem is, you are asking the presiding judge to reverse a probable cause finding she has already made. But one thing a high-profile case may have done in this case is spur the defense to get its story out in public. The best way to do that is put their case in the public record with a motion. What the motion stresses is the defendant's side of the case. Deciding who's right about the facts is a matter for trial, not for a decision about probable cause. People should wait and see the state's response, due August 21. though I doubt it will change the opinion of those who have already made up their minds here. Never predict what a judge may do, but I believe this case will go to trial. It looks like the defendant has a tough and vigorous defense team. And there are seriously contested facts. This probably will be the most followed trial in Missoula in a very long time, maybe all the way back to the federal case against Grizzly coach and AD Jack Swarthout, and some assistants, in the 1970's which resulted in acquittal for charges of defrauding the the work study program to enhance athletic scholarships. That was another prosecution of a popular and successful Missoula athletic figure where there was very strong public opinion.

Dub
Dub

Fred, time for you to think about retiring---How about this, let McCubbin take over, that way we would have total chaos--just kidding, McCubbin is the MOST incompetent man in county government.

Cats Life
Cats Life

I have no dog in this fight, but it is good to see that Jordan Johnson actually has attorneys that are aggressively defending the case. I seriously doubt we will see any type of "negotiated plea" where he ends up with a criminal record and prison time.
He may end up being convicted, but at least his attorneys will not roll over.

There is a well-know, over-hyped law firm in Missoula (yes, THAT one) that gets a ton of press, but rarely delivers for its clients in criminal cases. I cannot recall the last time that firm actually took a criminal case to trial. Many of its felony clients end up with guilty pleas(no trial) and prison.

I have no idea whether Johnson is guilty or not, but it is good to see that his defense team is putting up the kind of fight he (or anyone in his position) deserves.

alliknow
alliknow

I am glad Jordan Johnson is finally getting a voice in this...thank you Kirsten Pabst!

Roger
Roger

I have to agree with Walter12 - this is a very flimsy case that never should have been brought. It reveals the anti-male sexism common in the criminal justice system. The accused gets his name published in the news - although he is INNOCENT UNLESS PROVEN GUILTY IN COURT - while the female accuser remains anonymous. This has got to change.

Bass Whacker
Bass Whacker

Especially here where this accuser has voluntarily, through her texts, made this incident public. With the identities of her roommates now known, its only a matter of time before her identity is being discussed on facebook or twitter and will be in the public domain.

Roger
Roger

Good!

Kahlotus
Kahlotus

Explain why this is good. What do you plan on doing with this information once you obtain it? Do you plan on harassing her or showing her what a "real man" can do to a woman? The victim's name is kept anonymous to protect them from creeps like you. I hope this young woman gets a CCW to keep her safe from misogynists like you.

Bass Whacker
Bass Whacker

Roger is obvioulsy implying that under the circumstances, that makes things "fair". However, using the logic based on your negative assumption, shouldn't the presumed innocent accused be kept anonymous to protect him from creeps/misandrists ?

walter12
walter12

This young woman was coerced into filing this charge against this young man by certain arch lefists on the UM campus. Come on, months later she decides that it would be nice to file the charge and get a lawyer. If this was not a complete set up from the start, then it surely was an incident that fell into the hands of these leftists to use later, and now they are attempting to use this incident for themselves.

Kahlotus
Kahlotus

I'm curious Walter, what is the source for your wild accusations? List some sources. My guess is that your information is made up in that extremist right-wing facist mind of yours.

Alan Johnson
Alan Johnson

Walter writes satire. He's mocking the right. Don't misunderstand him.

Tiger
Tiger

Ms. Pabst, weren't you employed as the attorney in charge of sex cases during your tenure? No wonder the DOJ is involved in looking at the cases you handled. This motion is frivolous and simply an attempt to manipulate the jury pool, you know better than to do that. I assume you were critical of defense attorneys who attempted the same manipulation when you were a prosecutor. I hope you didn't make any promises to your client and his family that there wouldn't be any charges brought against him this case, because your motion smells of desperation. Your willingness to throw your former colleagues under the bus on one of your first cases in private practice tells me all I need to know about your character. You have become what you once fought against and despised. Money is a funny motivator isn't it?

Missoula Mom
Missoula Mom

the alleged victims texts speak volumes...i think it's the alleged perpetrators right to get his chance to speak...i don't find it frivilous whatsoever...the truth from both sides should come out...why is it that only one side should have the right to leak information to the media as was the case with alleged vicitm and her attorney, and the alleged perpetrator must remain silent? who cares if Pabst was a prosecuor or not...you do your job no matter what side you're on...I don't feel the motion "smells of desperation" but rather points out some facts that were convienently left out of the charging document. I for one look to Mr. Johnson getting his day in court as well as hear the alleged vicitm...thankfully we live in America and are supposed to be presumed innocent until proven guilty, but in this case Mr. Johnson is presumed guilty and must prove innocence...hmmm.

pushingback
pushingback

I agree with Missoula Mom. Tiger, are you actually saying that decisions to take someone's liberty and ruin their family forever should be based on favors between former colleagues? Let's not forget that a prosecutor's job is to present the TRUTH and seek JUSTICE. That's been forgotten here, if you look at what Boylan submitted to the court and Van Valkenburg sent to the press. The "bus" that Tiger refers to is call "The Law." And the last time I checked, it is suppose to apply to and protect everyone, and not be used as a tool of oppression. If you or your chronies are under that bus, shame on you.

hellgatenights
hellgatenights

nope....your wrong WJR

Every girl knows you don't start the car unless you want to take it for a drive.

No one here knows what happened.....but the girl does not sound convincing nor does she really sound like a victim. She sounds like a girl who made a mistake and wanted it to go away.

Hmmmm.....how many people have had sex and wished they hadn't.....raise your hands please. Yep.........just about everyone has been there.

If there are really some clueless women out there that do not understand the constant "drive" a young man has to deal with.....stop in and see your doctor this week. For those that had terrible parenting.......let me be clear......you do not go into the bedroom.......a basement.......or a car.....alone with a man. Period.

MTminded
MTminded

If Jordan Johnson were studying pre-law at U of M he’d be able to tell you that this sort of pre-trial motion is common and necessary posturing. What he may not be able to tell you is what his defense team is probably not telling him: rape convictions may be somewhat rare but they are nonetheless life changing for the defendant, and possibly career ending for the attorneys. If Johnson is found guilty his attorneys dang sure better have solid grounds for appeal; that is what this motion is all about.

I resubmit my plea: parents/teachers/coaches please explain the difference between rape and consensual sex to your children/students/athletes, TODAY. No one should have to endure the hardship of defending or prosecuting rape.

Bittersweet
Bittersweet

Rape convictions are life changing for the defendant? You think? In this case, a rape accusation has already been very life changing for the accused. Are you implying that this motion was filed just in case this goes to trial and Johnson is convicted.......so they have grounds for appeal? Please elaborate. Is the only way an appeal is granted is if a pre trial motion to dismiss is filed?

.........

I ask this because I, for one and not studying pre law at the U of M. Educate us, please.

MTminded
MTminded

Motions of this type (I imagine there will be several more filed) are generally heard prior to an omnibus hearing and certainly prior to the seating of a jury. Few judges will impose upon a jury to sit in sequestration while such motions are presented to the court. Juries tend to frown upon legal teams, prosecution or defense, who don’t have their ducks in a row (all motions filed) when it is time for the facts of the case to be presented. If these motions, with their accompanying information, are not filed prior to trial that information cannot be used in appeal. If the judge dismisses the motion it is still tied to the trial and can therefore be used in appeal.

I have very little doubt that this case will indeed go to trial. The motion presented by Mr. Johnson’s defense attorney(s) is a strong indication they are aware of the incriminating evidence stacked against their client. They may not win the trial, and if not they must win the appeal. There just aren’t that many billable hours available in traffic court, where their careers are surely headed if they lose a high profile case like this.

Tracker
Tracker

What are you going on about? Juries sitting in sequestration? Hint: Missoula juries are virtually never sequestered and routine motions are heard during jurors' breaks, without trial interruption. If a judge is listening to lengthy arguments about a motion, jurors have no idea which side is behind the recess.

Alan Johnson
Alan Johnson

Actually, virtually all pre-trail motions are given notice of by either side at the omnibus hearing. That's what an omnibus is for. The judge sets the schedule for the moving parties to have their motions in, then for the responding party to respond, and then for the moving party to file a reply to the response. Trial is also scheduled along with other housekeeping matters. The rapid filing of the motion in this case is unusual. But it does serve the purpose of getting the defense story out into public in rapid fashion. This is as much of a high-profile case as Missoula had seen in some time. So the rapid filing of the motion to dismiss probably had a lot to do with the intensive publicity prior to the filing of charges. And since anything filed in court is public record, the defense does not have to talk directly to the press to get its story out.

The idea that attorneys who lose a high-profile case would end up in traffic court is silly. But maybe the writer was trying to be funny. I wonder if things such as gag orders (banning lawyers from talking about the case to the press) might be in the offing. It may also be very tough to seat a jury that hasn't been influenced by the high level of publicity.

Alan Johnson
Alan Johnson

Let me help a bit. First of all, there really is no such major known as "pre-law" at UM.
But students interested in eventually going to law school are advised to take a certain line of undergraduate courses, a lot of them in philosophy, which are considered good preparation for instruction in legal reasoning. But the only education required to get into law school is a bachelor's degree in anything. (There are other requirements). There is no undergraduate course that will teach anyone anything about motions and trial practice. That's for law school.

In a criminal trail, an error not objected to at trial or raised through a motion, cannot be brought up on appeal. So it is a defense attorney's duty to raise motions, or at trial, object to things that might plausibly be argued as reversible error later to the Supreme Court. If the matter is not raised at the trial court level, it can't be raised to the Supreme Court either. There are exceptions but it would take an essay to explain all the nuances, so I won't inflict that upon you here.

WJR
WJR

Call me crazy, and I know some of you will, but the second that someone says "no", at any point during a hormonally-charged encounter, it should be respected. No one should coerce or pressure or just keep going after hearing that word, male or female. I think the mindset of "oh, they really do want it" or "I can make them want it" is the problem. And yes, it is on both sides, though most intelligent folks know that males do have the advantage as far as physical strength and societal acceptance goes. Either way, we need to teach, and learn, responsibility for respecting and listening to a potential sexual partner for everyone. Quit blaming the one who tried to speak, and look at the one who refused to listen.

Pistol
Pistol

Problem using your scenario is she states what a nice guy Johnson is even after the alleged rape. If she still believes this at the time of the alleged rape she couldn't have feared for her life. That said with two roomates a door away she could have yelled for help. A person's actions speak louder than words. If she is physically coming on to him with her body language the word no is a flirtation not a NO! It has been said woman control the morals of society especially in regards to sex. The liberation of woman sexually has changed society. It use to be a disgrace to a family to have a daughter living with a man out of marriage. Strip clubs where located in only certain cities. I was told by a man in the adullt store business that prostitution in a college town is practically non existent, because of the willingness of coeds to sleep with men. Some one wrote a woman shouldn't get in a car, bedroom, or basement with a man. That is a lot over the top but the bedroom part is a no brainer. Why put yourself or the man in a situation that might get out of hand? Take a match and gasoline and keep striking the match. Sooner or later there will be a flame or worse an explosion. If this sounds like I'm placing most of the blame on the woman, I am. I have a friend who was addicted to cocaine! He has been clean for years. I asked him how he finally quit using the drug? His answer was, "you know where you can be tempted, and where it is available so don't go there." Same is true about sexual encounters.

Bittersweet
Bittersweet

WOW! Just red the motion. Of course a lot still seems like a "he said"..."she said" but it is good to know Jordan is finally getting a voice. Not only what Jordan is saying but much of what she says makes you go hrrrmmmm??? This would be a tough prosecute for sure.

Alan Johnson
Alan Johnson

Wow. Interesting brief! I can't wait to read the state's response.

Bittersweet
Bittersweet

"...........incomplete information was improperly released to reporters"

Janice
Janice

I commend Ms Pabst for fighting as hard as she can to for her client.

What bothers me is that Ms Pabst knows all too well how the county works. She's quite effective because she was living in the wolves' den so to speak. She herself has been in on railroading people. I'm very glad it's coming around to bite them in the butt.

Many people wind up with public defenders who seek out pleas and lesser charges just to avoid more work on the already much to large caseload. They don't actually DEFEND anyone against charges. They just try to get them the best deal and don't challenge the prosecution's evidence. I'm glad that Ms Pabst is giving her client a heck of a good defense.

Another factor I'm sure at play here is the Victims Advocate. They get hold of these women who "aren't sure" they've had a crime committed against them and convince them one has been. They push and push and push. Yes, in some circumstances, especially battered women, those advocates need to be in place. I can't see how any woman wouldn't KNOW if they've been raped. If she doesn't even KNOW if she was raped, how the heck was he supposed to know she was saying NO? They lead and suggest and put words into the mouths of these women. Pretty soon, it's in a statement, and lives are ruined.

I agree her name should be released if this case is dismissed. We have leaned so far in trying to protect real crime victims, we've forgotten about those who are accused. 3 white men were accused of beating up a gay man. Luckily none were singled out, but if there had been, in this digital age, you can't get anything off the internet. Someone could have been forever connected on the www, and nothing could have been done about it.

montanamuralist
montanamuralist

Thanks for this inciteful comment Janice...could not agree more!!

griznationbaby
griznationbaby

Very insightful comment Janice, and I agree on protecting people's reputation from Internet defamation in this digital age. WE as a society need to constantly seek the TRUTH, not just receive media content (whether it be from book print, digital website, TV broadcast etc. etc.), and accept it for what it is. And once again I'll say it once, and someone else will say it twice, the UNITED STATES OF AMERCICA was built to protect our rights of freedom and liberty, that is why we the citizens are essentially INNOCENT UNTIL PROVEN GUILTY.

Bass Whacker
Bass Whacker

I hope for UM's and the County's sake Mr. Johnson is the sweet, kind guy the alleged victim describes because his willingness to forgive what is now clearly unforgiveable conduct is the only thing which will prevent a punishing civil verdict he will receive against these institutions. The give and take between Mr. Johnson and her, in her own words, are the usual give and take banter between two people when having sex for the first time. And now we see she admitted, after the fact, it's not that she didn't want to have sex, she did and she was sure they were going to have sex, she wasn't sure afterward that she really wanted it this soon. She doesn;t know if she was raped but she does know she gave Mr Johnson all sorts of signs she consented to the act at the time. Unbelievable.

Cato
Cato

She changed her original story, "I said no," to later claim only that "I didn't say 'yes.'"

She admits, "I gave mixed signals."

Pistol
Pistol

Exactly! I wrote when the charges were filed that this was a knee jerk reaction by the county to appease the DOJ investigators. Let's hope the rape didn't happen for the alleged victim's sake. That said if the charges are dropped "Jane Doe" should be identified. The name of the gay man was published when it became known that his alleged crime charge was not true.

onetwopunch
onetwopunch

Wow Mr Van Valkenbug! never thought you would pipe up on here!!!!! Of course they pick and choose the facts!! This is Montana where the Justice System is the JUST US system! Keep trying to hide your corruptness, but remember this is 2012 and your back woodsy ways are about to end! sounds like another witch hunt but in reality its already laid out, he will get off and she will be called a liar. Montana Justice!!

AARGH
AARGH

"And she will be called a liar" Glad to know you were there, which explains how you know she isn't lying.

Buzz Feedback
Buzz Feedback

The defense document provides additional details but it doesn't take issue with the part on page 5 where she says, "No." Does it really matter what happens after that?

If Ms. Pabst was prosecuting sexual assault cases for the County, I think I understand why DoJ is sniffing around the courthouse.

Love's Life
Love's Life

The fact that "jane doe" is saying she said "no" now is just a he said she said. SHE could be making that up after the fact. If you look at all the actions...it appears that jane doe had a change of heart for some reason...happens a lot!!! Seen it with my own eyes...and i am a women. I guess we will see...but apparently there are a lot of false accusations going around these days.

Janice
Janice

He got his clothes and went home. Of course she was mad. What better way to teach him a lesson than to cry rape? I just cringe when someone says women won't make up stories. Oh yes we do. Some just worse than others.

RPT
RPT

No.. They got dressed and SHE took him home.
She had picked him up also because he had been drinking and didn’t want to drive.

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