Missoula: Rape and the Justice System in a College Town

by Jon Krakauer

As defense counsel for Jordan Johnson, Kirsten Pabst and David Paoli had a professional responsibility to sow doubt about Cecilia Washburn’s credibility at every opportunity. Throughout the trial, to fulfill this duty, Pabst and Paoli made misleading statements about Washburn without compunction. Montana lawyers are required to adhere to the Montana Rules of Professional Conduct, which are based on the American Bar Association Model Rules of Professional Conduct. According to both the Montana Rules and the ABA Model Rules, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” It’s nevertheless common for lawyers to deliberately make untrue statements in court, and they usually get away with it, especially defense counsel. “There’s a double standard,” Rebecca Roe told me. According to Roe, who supervised the sexual-assault unit in the King County Prosecuting Attorney’s Office for eleven years, “Judges tend to hold prosecutors to a higher level of truthfulness than defense counsel.” Furthermore, she said, “If prosecutors make statements in court that aren’t true, and the defendant is convicted, the defense can appeal and get the conviction overturned. But there is no corresponding deterrent when defense lawyers make untrue statements, because if a defendant is acquitted, the prosecution can’t appeal.” Seemingly by design, the American legal system encourages defense counsel to be as mendacious ...