Prosecutor wants text messages sealed in rape case against suspended Griz QB

2012-09-01T06:00:00Z 2014-10-03T14:28:05Z Prosecutor wants text messages sealed in rape case against suspended Griz QB

The Missoula County Attorney’s Office is concerned that the rape case against suspended University of Montana Grizzlies quarterback Jordan Johnson is becoming “a trial of the victim.”

With that in mind, it’s asking that the 36,000 text messages recovered from the alleged victim’s phone be reviewed privately by the court, and that the documents containing those messages be filed under seal.

Meanwhile, Johnson’s defense team continues to hammer at the state for not releasing the texts.

On Friday, following up on a defense contention earlier this month that the Missoula County Attorney’s Office “cherry-picked” facts in charging Johnson, defense attorneys Kirsten Pabst and David Paoli accused the state of misconduct, and asked for a third time that the case be dismissed.

“Montana law recognizes that dismissal is appropriate and necessary when the state thoroughly undermines the defendant’s due process rights,” they wrote. Until starting a private practice this spring, Pabst was chief deputy Missoula County attorney.

The documents filed Thursday and Friday are the most recent exchange in the spirited fusillade of legal paperwork filed since Johnson was charged July 31 with sexual intercourse without consent. A fellow UM student said he raped her as they watched a movie at her home on Feb. 4. Johnson pleaded not guilty.

The request to seal the text messages came Thursday in a motion from Assistant Chief Deputy County Attorney Suzy Boylan. It was filed in conjunction with a response to an attempt by Johnson’s defense to compel the prosecution to produce the text messages, or else dismiss the charge against Johnson.

That attempt, Boylan wrote, lacks “one iota of legal support.”

Last week, Paoli sought an encyclopedic amount of information about the victim, including the text messages and her medical and school records going back to the age of 5. Paoli accused the state of “jeopardizing Johnson’s defense by failing to produce discovery,” or evidence.

But Boylan wrote that – with the exception of the text messages – the state already has sent, or is in the process of sending, most of the requested materials. She also wrote that the state expects to deny the requests for the medical, psychological and school records.

The disputes over the text messages will require guidance from the court, she wrote.

And she outlined the state’s concern that the case is being tried in the media, and is too focused on the victim.

“In analyzing the Rape Shield Statute … the Montana Supreme Court has held in a long line of cases that a rape trial should not be a ‘trial of the victim.’ ” That includes Supreme Court findings that a victim’s flirtatious conduct – something Johnson’s defense alleges – is inadmissible.

Boylan quoted from a 2001 case that “not only is this evidence irrelevant to the issue of consent, it is precisely the harm that the rape shield statute is designed to prevent.”

Paoli and Pabst argue that “facts surrounding the alleged non-consent of the victim and the mental state of the accused become the crux of the charge.”

The state’s affidavit of probable cause stated that Johnson got aggressive as the two were making out and the woman “started to get scared and told him, ‘No, not tonight,’ repeatedly.”

But the defense wrote that “the state carefully failed to reveal Doe’s multiple other statements indicating that she did consent to sex.”

Those “statements” included the woman’s kissing Johnson, taking off his shirt and getting on top of him, they wrote.

By withholding such information, “the state made it impossible for the court to perform its constitutionally mandated role of shielding citizens from unwarranted charges,” they wrote.

Missoula County District Judge Karen Townsend will rule on the various motions. On Friday, she granted an unopposed defense motion to allow Johnson to travel outside Missoula County for recreational purposes. His next court date is set for Tuesday.

Johnson was suspended from the football team after being charged, but continues to attend classes at UM. He and his alleged victim, also attending classes, are under a civil no-contact order.

Reporter Gwen Florio can be reached at 406-523-5268, or @CopsAndCourts.

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

Copyright 2015 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(25) Comments

  1. Richmond Computer
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    Richmond Computer - September 03, 2012 11:07 am
    Text messages have become a huge part of litigation. Once reserved for high profile cases, the submission of SMS text messages are now used even in small cases such as this. A single text message can sway a court's decision, if its presented. My firm has perfected the process of recovering text messages and producing them in court admissable format. For inquiries, please visit
  2. walter12
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    walter12 - September 02, 2012 5:34 am
    The NY Times, you must be kidding. That is the most leftist newspaper in the country now. It has thrown away any of its little credibility that it had, long ago. It is simply a mouthpiece and tool for this Obama and his minions. But it also likes to push any and all leftist agendas.
  3. montanamuralist
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    montanamuralist - September 01, 2012 4:09 pm
    Actually I was interviewed by the New York Times on Thursday afternoon. They were talking to average people around town and asking their opinion about the Griz etc etc... Seriously...they are here doing a story on support of a program under fire and innuendo etc etc....
  4. Buzz Feedback
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    Buzz Feedback - September 01, 2012 3:33 pm
    Is there a mouse in your pocket?
  5. hellgatenights
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    hellgatenights - September 01, 2012 2:25 pm
    We don't subscribe to the "New York Times" here Buzz Feedback.......we find it too liberal, highly political and subservient to various creeds of "Political correctness."

    And it is a fact they have had more than two reporters cited for plagiarism or fabrication. If I wanted to read fictional reports I would read the logs of Engstroms administrators.

    Besides, they have no reporters here and have nothing to contribute.
  6. Buzz Feedback
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    Buzz Feedback - September 01, 2012 1:00 pm
    The prosecutor filed his motion to seal yesterday. Sorry to pierce your football bubble with news reported in a timely fashion.

    P.S. I hope you enjoy the article in today's New York Times.
  7. crowman
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    crowman - September 01, 2012 12:24 pm
    Among many other things, the timing of this publication really bothers me...

    But it doesn't bother me nearly as much as the timing of the story late last fall, JUST BEFORE kick-off of the playoff game, when Johnson was on the field.
    That alone probably had a tremendous impact on team morale.

    These things can't be written off as coincidence.
    The Missoulian's actions do make it look like the paper is targeting not only Johnson, but the whole football program.

    Now you have a reporter who is as much of the story as Johnson and the victim! That's not a situation the paper should find comforting.

    Your reporter should be taken off the story and replaced for the duration of the trial.
    From a distance the whole thing looks comical. I wish it was.
  8. ynot
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    ynot - September 01, 2012 12:04 pm
    Funny, commentators on this site clamor for any news on this case, demand highly sensitive information, throw accusations of bias, then vilify the Missoulian for it's reporting. Why don't these people head over to the Courthouse, pay for the documents themselves, analyze it themselves, then report back to the rest of us football-hating commies? Oh that's right, it's because they already KNOW who's guilty and who's not, what evidence exists, what's admissible in a Court of Law, how the Justice system works AND how the cow ate the cabbage.
  9. ynot
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    ynot - September 01, 2012 11:43 am
    You're painfully oblivious of some hard facts. The DOJ didn't become involved because of a football quarterback, it became involved when the parents of a student who was GANG RAPED by several football players, NOT including Johnson, filed a suit against the University of Montana and the entire football team. It has nothing to do with President Obama - but let me ask you this, if you were a DOJ official, or God forbid our Nation's President, wouldn't that trouble you just a tad? But I can see your only real worry is how the Griz are going to come out today, so I guess that at least calms my mind about you ever attempting to do anything beneficial for society, you non-contributing zero.
  10. UMalumnus
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    UMalumnus - September 01, 2012 11:25 am
    The timing of this story raises my eyebrows. There doesn't seem to be anything urgently new here. Could it have waited until Sunday? Probably. To publish it on the kickoff for the season -- one has to wonder if the editors wanted to take advantage of that.
  11. Hal Jordan
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    Hal Jordan - September 01, 2012 10:21 am
    my god, why do you and walter keep bringing the president into this? i am not a fan of the guy, but seriously you and walter look and sound like nut jobs when you bring up the presidents name in this case. i promise you, he has never heard about this. pistol and walter12 are complete parandoids...its laughable
  12. Northwoods
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    Northwoods - September 01, 2012 10:08 am
    The text messages will further characterize Ms. Doe as a woman who accepted Mr. Johnsons advances and who co participated in the dialogue. Everyone outside of a court knows they've had this type of dialogue that has eventually led to sex.
  13. GideonJones
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    GideonJones - September 01, 2012 9:51 am
    Judges decide what's admissible in court. The public doesn't simply get whatever info they want so they can make their own minds up separately from what's going on in the court. Having this woman's entire private life thrown out into the public by the courts so people can attack her shouldn't happen. We have laws making that illegal.
  14. GideonJones
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    GideonJones - September 01, 2012 9:47 am
    Not sure if you understand how phones work, but they'll contain both her sent messages to him, her messages received from him, and messages she sent and received that have nothing to do with him. Those 36,000 messages aren't all to or about him.

    Having the entire thing dumped out into the public so people like this site's lovely commenters can attack her for things that have nothing to do with the case is pretty clearly both wrong and illegal under the state's rape shield laws.
  15. castigate
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    castigate - September 01, 2012 9:26 am
    " conjunction with a response to an attempt..." may provide readers with a syntactic mystery that will get them through the winter.
  16. montanamuralist
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    montanamuralist - September 01, 2012 9:20 am
    Sorry, for the prosecution, with the Department of Justice breathing down their neck, it is always about winning. I do not blame them for that as long as they are looking at facts, which seem to be somewhat skewed here and in this case they are clearly manipulating the evidence. Not about a conviction at any cost no matter who is breathing down your is about the facts! The ladies past history is not relevant here? Really?? I can understand that to a point but also have some very serious doubts about the ladies behavior in this instance. That is not making a judgement, but is a concern as I have said in the past on these pages and it would be for me if I were on the Johnson jury to be honest. Yes it is being tried in the media. ON BOTH SIDES!!!! Johnson was convicted by some bogus council at UM and women's groups who obviously hate football and say we have to believe the victim no matter what? Sorry but it is true! Now the required propaganda from the U for incoming students states that it is a myth that victims make up stories about being raped. Are you serious??? I am not taking Johnson's side here but we live under the rule of law and the prosecutors need to deal with this case in that manner....not withhold evidence which is a common tactic here. The defendant is INNOCENT until proven guilty and from my view that will be difficult. Looks more and more like these charges should not have been filed. I am wondering if they will even find a jury in Missoula County??
  17. Abasnail
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    Abasnail - September 01, 2012 8:54 am
    Ha ha, bet they do!
  18. Pistol
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    Pistol - September 01, 2012 8:28 am
    All of this mess goes back to the handling of sexual assault by the University of Montana. Hilited by the administration helping a foreign student to escape charges, and low lited by firing a football coach and AD. This resulted in some political powerful hack to get OBama's justice department involved, in alleged sexual assaults. The only reason this case was charged was the pressure to prosecute placed on the county attorney's office. I think the alleged victim should be shieled, but if the charges are dropped or he is found innocent her name revealed. Today some 20,000 football fans will see a consequence of all of this mismanagement.
  19. Cato
    Report Abuse
    Cato - September 01, 2012 8:08 am
    "With that in mind, it’s asking that the 36,000 text messages recovered from the alleged victim’s phone be reviewed privately by the court, and that the documents containing those messages be filed under seal."
  20. GideonJones
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    GideonJones - September 01, 2012 5:37 am
    Given that you haven't seen any of the evidence, how can you say that? Unless you're simply assuming there is no evidence, because they prosecutors aren't releasing it to the public ahead of trial.
  21. GideonJones
    Report Abuse
    GideonJones - September 01, 2012 5:25 am
    The text messages are from both parties. It's not like the prosecutors released the accused messages, but are "hiding" the accuser's messages from the public. Moreover, they have no control over the Missoulian.
  22. Bittersweet
    Report Abuse
    Bittersweet - August 31, 2012 10:52 pm
    Hrmmmmmmm? Something to hide?


    "Trial of the victim....or alleged victim?" ....NOTE......I am not certain which it is, maybe someone else does? Gwen does not seem to be concerned with the fact that the alleged perpetrator may have been tried in the Missoulian for the past several months. Why so one sided? Just curious?


    "spirited fusillade of legal paperwork"...."an encyclopedic amount of information"...


    ^^^ I just threw up a little in the back of my mouth. Report the news, If you want to write novels, look for a job elsewhere.


    "the case is being tried in the media, and is too focused on the victim"....


    Say again? The media is focusing on the alleged victim? Florio convicted Johnson quite some time ago through the media.


    With that said, I, at this point do not know if Jordan is guilty....or not. I was not there, and I am guessing none of us (posters) were. From what I have read, this would be a hard case to try. I am uncertain if charges ever should have been filed in the first place. Only time will tell.

  23. hellgatenights
    Report Abuse
    hellgatenights - August 31, 2012 9:41 pm
    The withholding of the text messages has become a crucial issue and begs the court to prove they are not evidence in this trial of allegations.

    Suppose the text messages revealed that the girl stated or implied that she willing participated in sex with johnson. How can the court ignore this? And how can the prosecutors, who are officers of the court, morally seek to disqualify this journal written my the plaintiff's own hand?

    How can this be fair? The girl says rape, he says consensual.....who is correct (if either)? We must have the texts.

    Should they have thrown out the Rodney King tape because it was was not relevant to the question at hand......"King resisted arrest"? Of course is relevant.

    Miz Boylan, please remember you are an officer of the court. Your job is not to win at "Any cost".......nor are you to withhold evidence that could save a man from prison. Who are you .......the judge?

  24. Richland1
    Report Abuse
    Richland1 - August 31, 2012 9:24 pm
    It's becoming increasingly clear that this case is without merit. The text messages are relevant to the basis of the charge--this case should never have been filed and we look for it to be dismissed in the interest of all parties in the very near future.
  25. sportscaster
    Report Abuse
    sportscaster - August 31, 2012 9:21 pm
    Funny, the prosecution doesn't seem to care that Johnson was tried and convicted for months by The Missoulian after the initial restraining order was put in place. But since it's a rape case, when laws shielding the alleged victim are so one-sided, I guess that makes it legal whether it's fair or not. Ms. Doe was the one who piled up the text messages, and if they have a bearing on the case for or against her they damned well should be part of the proceedings or they've made an absolute farce out of so-called equal justice.
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