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, email@example.com or @CopsAndCourts.