QB's trial begins amid larger scandal

Montana rape trial complex, part of scandal that has enveloped Missoula campus

Updated: February 8, 2013, 4:45 PM ET
By Lester Munson | ESPN.com

At an alcohol-fueled party a year ago on the University of Montana campus, a student threw her arm around Jordan Johnson, the Grizzlies' star quarterback, and told him in a voice that others could hear, "Jordy, I would do you anytime."

They danced a bit, talked for a while, then drifted apart, lost in a throng of 1,500 students enjoying the 95th annual Foresters' Ball, the biggest party of the year.

The next night, the two had sex in the woman's house. The morning after that, the woman sought a medical evaluation. Six weeks later, she filed a police report accusing Johnson of rape, telling police she had repeatedly told him, "No, not tonight," while they had sex. Johnson's case begins Friday.

The case is complex on its own merits but also central to an ongoing scandal that has enveloped the Missoula campus for nearly two years, a scandal that has some residents believing no athlete can get a fair trial in town if accused of a crime and others believing women routinely have been discriminated against by local police and prosecutors in dozens of incidents.

The larger scandal has resulted in investigations by the U.S. Department of Justice, the U.S. Department of Education and the NCAA; has caused the dismissals of the football coach and the athletic director; and has left a cloud over a once highly respected FCS football program and the university. The investigating authorities want to know whether the university, the county prosecutor and the police have discriminated against women in their handling of 80 reports of sexual assaults in Missoula in the past three years, including 11 on the campus. All three investigations remain pending.

The encounter with the woman also has ended Johnson's promising football career (he led the Grizzlies to an 11-3 season as a sophomore and threw six TDs in one game). The 20-year-old math major faces up to 100 years in the penitentiary if he is found guilty of sexual intercourse without consent.

It started out with a text

"Hey, you!"

That was the simple text that reacquainted Johnson with the woman he had chatted with at the Foresters' Ball the night before. He had sent the text the next day and suggested the two meet, according to court documents and statements the woman and Johnson made.

Jordan Johnson
AP Photo/Wade PayneThe rape trial involving former Montana quarterback Jordan Johnson, left, begins Friday.

She liked the idea, and, at 11 that night, she picked him up (he had been drinking and did not want to drive) and brought him to her house.

One of her roommates was playing a video game in the living room, so the woman led Johnson into her room to watch a movie, from her bed.

After a few minutes, there was some kissing, but she told Johnson: "Let's just watch the movie." Then, "After playfully arguing with him for a minute, I gave in and let him take off my long sleeve shirt. After he took off my shirt, I took off his shirt. & We continued kissing while I was on top of him."

That's when the couple's stories begin to differ, according to documents filed in District Court for Missoula County. The woman insists that Johnson flipped her over and raped her as she said again and again, "No, not tonight."

Johnson insists that her only words were to ask him whether he had a condom; to reply "that's OK" when he said he didn't; and finally to exclaim, "Oh, you're bad" in what Johnson's lawyers say was a "flirtatious tone."

Although Johnson and the woman disagree on what was said, there is no doubt that, in the moments after they were done, the woman texted her video-gaming roommate, saying "OMG & I think I might have just gotten raped & he kept pushing and pushing and I said no but he wouldn't listen & I just wanna cry & Omg what do I do!"

According to Johnson and his lawyers and the papers they have filed in court, she did what many might do after a consensual sexual encounter: She dressed; she prepared a snack; she drove Johnson back to his house; and, by prearrangement, she picked up another friend who was attending the second night of the Foresters' Ball.

On the morning after the encounter, she told another friend in another text that "I think I got raped last night." The woman and the friend went to the Student Assault Resource Center on the campus, then to a clinic for a medical examination.

Injuries might be key in trial

The bedroom conversations, the text messages the woman sent immediately after the encounter, a written statement and any injuries found in the medical examination will be critical evidence as the Missoula jury determines the key issue in the trial: Was the sex consensual?

[+] EnlargeUniversity of Montana
Getty ImagesThe scandal, the investigations and the rape charge have caused major disruptions in Missoula, a picturesque college town of 67,000 with 14,000 students nestled at the base of the Rocky Mountains in western Montana.

In many similar cases, known in the courts as "acquaintance rape" prosecutions, any injury to the victim proves to be the most important evidence. According to court filings made by the prosecution, the woman suffered "small abrasions," redness and swelling in the genital area as a result of the sexual encounter, as well as "marks on her chest and tenderness to the side of her head." It is expected that the prosecutors will argue that the vaginal abrasions are evidence of nonconsensual sex.

Johnson's lawyers will tell the jury that the injuries were the result of consensual sex and have hired at least two "independent medical providers" who will offer expert testimony in support of their assertion.

The prosecution will face significant challenges on the issue of consent. The state must prove beyond a reasonable doubt that Johnson "knowingly" had sexual intercourse "without consent." Acknowledging the difficulty of the case and its importance to the Missoula community as the three investigations into sexual assault issues continue, Missoula County Attorney Fred Van Valkenburg (whose son writes for ESPN.com) has assigned three lawyers to the trial.

Among the problems the prosecutors will face on the consent issue will be statements that the woman made in the days after the incident. In addition to telling her friend the next morning that she thought she had been raped, she told the friend that she didn't want to report the rape because she "felt responsible."

In another statement, she suggested that "this whole situation is my fault because I feel like I gave Jordan mixed signals which caused him to act in the way he did."

Before she made her decision to accuse Johnson, she also said: "Maybe it was the clothes I was wearing that day, us making out, or me taking off my shirt that made Jordan think that I wanted to have sex."

In addition to what promises to be fierce cross-examination from Johnson's attorneys on these statements, she also said in a written statement, "Anything I did that night could have given Jordan the idea that I wanted to have sex, but in no verbal way did I tell him that I wanted to. Granted, I probably would have had sex with him in a consensual way in the future, but I did not want to have sex that night."

Even as she considered the filing of a rape charge, she told yet another friend, in a text: "I don't think he did anything wrong to be honest." And she said she knew that her accusation "will hit him like a ton of bricks."

Case becomes part of larger investigation

Although the woman texted and talked and wrote about what happened, she did not make any formal accusation for four weeks. After four weeks, she asked only for a court order that barred Johnson from contacting her in any way, a court action known as an order of protection.

In March, two weeks after she obtained the order of protection and six weeks after the incident, she went to the Missoula police and asked that Johnson be charged with rape.

[+] EnlargeMontana Rape Case
AP Photo/Kurt WilsonMissoula County Attorney Fred Van Valkenburg, left, in May blasted the U.S. Department of Justice's announcement of a series of investigations into the response of the University of Montana and law enforcement agencies to sexual assault allegations.

Her report to the police came amid indication on the campus and in Missoula that the federal government was about to take action on a series of complaints that the authorities had failed in their handling of complaints of sexual assault and harassment by members of the football team and others.

In an apparent effort to respond to the developing scandal, university president Royce Engstrom in April fired football coach Robin Pflugrad, who had been named Big Sky Conference Coach of the Year after the previous season, and athletic director Jim O'Day.

Shortly thereafter, on May 1, the U.S. Department of Justice announced its investigation of 80 reports of sexual assault in Missoula in the past three years, including 11 reports of assaults on campus, including the charge the woman had made against Johnson that is already under investigation.

The announcement came in a dramatic news conference in Missoula that drew national attention. In a written statement, U.S. Attorney General Eric Holder said: "The allegations that the University of Montana, the local police, and the County Attorney's Office failed to adequately address sexual assault are very disturbing."

Flanked by the three targets of the investigation -- Engstrom, police chief Mark Muir and county attorney Van Valkenburg -- assistant attorney general Thomas E. Perez of the U.S. Civil Rights Division said, "Sexual assault and sexual harassment are intolerable; they undermine women's basic rights and, when perpetrated against students, can negatively impact their ability to learn and continue their educations."

Both Engstrom and Muir pledged their cooperation with the probe, but Van Valkenburg was not happy. He blasted the federal effort as "an overreach of the federal government."

Arguing that his office had done nothing wrong, Van Valkenburg said, "We have no choice, given the heavy hand of the federal government, but to cooperate with the investigation. We find it extremely ironic that the U.S. Department of Justice, an agency dedicated to the preservation and protection of the rights of people in this country, refused to tell us what we have supposedly done wrong."

The U.S. Department of Education joined the Justice Department in its probe, and the NCAA initiated its own investigation. All three remain pending, and no one has any estimate of when they might be concluded.

Scandal changes quiet, picturesque town

Three months after the announcement of the federal investigation and Van Valkenburg's response, the county attorney and his staff filed their charge against Johnson. It came on the eve of the Grizzlies' summer practice and resulted in an automatic suspension of the star quarterback under student conduct rules that had been strengthened as a result of the scandal and the federal investigation.

[+] EnlargeRoyce Engstrom and Pat Williams
AP Photo/Matt GourasUniversity of Montana President Royce Engstrom, left, and regent Pat Williams in May 2012 after the Montana University System issued new policies for handling claims of sexual assault.

The scandal, the investigations and the charge against Johnson have caused major disruptions in Missoula, a picturesque college town of 67,000 with 14,000 students nestled at the base of the Rocky Mountains in western Montana.

The developments have produced a "toxic environment," said Milton Datsopoulos, a lifetime Missoula resident, a graduate of the university and one of the town's leading lawyers.

"The mess that has developed is an unfortunate thing," said Datsopoulos, who recently represented another former Montana football player accused of rape. "The accusation that the county attorney has not pursued cases against football players is totally not true. It is now hard to get a fair trial. The presumption of innocence has been flip-flopped, and football players are now presumed to be guilty."

Instead of preferential treatment for football players, Datsopoulos asserts, the prosecutors are "very aggressive in their cases in their cases against football players and in their demands for stiff sentences. The deputies in the office of the county attorney are female and activist, and they make every case a matter of women's rights and a gender issue."

Datsopoulos represented former Montana running back Beau Donaldson, who admitted his guilt to a charge identical to the charge against Johnson and was sentenced on Jan. 11 to 30 years (20 suspended) in the penitentiary. According to court documents, 260-pound Donaldson admitted to police that he assaulted a Montana student as she was sleeping in his apartment on New Year's Day in 2012. The woman testified she feared for her life as Donaldson chased her after the attack. The judge who sentenced Donaldson, Karen Townsend, is also presiding over the Johnson prosecution.

"It is certain," Datsopoulos said, "that the environment created in Missoula is responsible for the 10-year sentence. "[Donaldson] did the right thing; he is a quality guy; he told the police what he did; he wanted to clear it up, and it has cost him dearly."

Others in Missoula do not share Datsopoulos' skepticism about the investigations. Pat Williams -- who served in the U.S. House of Representatives from 1979 to 1997 and is now a member of the board of regents that governs higher education in the state, including the university in Missoula -- saw a serious problem in Missoula, welcomes the investigations and praises the university's actions in response to the crisis.

Describing the situation that prevailed before the investigations prompted changes, Williams said: "The football team was recruiting too many thugs. Rape was not the only problem. There was vandalism, there were personal assaults, and there was destruction of property. The players were pampered and adored. Too many of them had the feeling they were bulletproof and immune to the rules that all of us must follow. They acted like arrogant marauders."

In the face of numerous allegations involving football players, Williams said, the university's "procedures were not good" and the authorities "failed to follow up on accusations from women."

But he also praises the changes the university has made even as the investigations have continued. University president Engstrom, Williams says, "welcomes and is eager to have the help that is coming from the investigations" and has dealt with episodes of misconduct "quickly, harshly and appropriately."

Whether the environment in Missoula is the toxic, fair-trial-is-impossible atmosphere Datsopoulos sees or the hopeful, improving situation Williams sees, the trial of the star quarterback on the rape charge might be the final chapter in a saga that has produced turmoil and embarrassment for the entire community.