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080812 jordan johnson

Jordan Johnson, left, appears alongside his attorney David Paoli in Missoula County District Court, where Johnson pleaded not guilty to a charge of sexual intercourse without consent.

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.

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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.”

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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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