Missoula (36 page)

Although Brady and Engen didn’t come right out and say it in their
Missoulian
article, they clearly believed it would benefit Missoula if Fred Van Valkenburg swallowed his pride, abandoned his lawsuit, and started working with the DOJ.

      F
red Van Valkenburg’s pissing match with the Department of Justice took place during the runup to the election for Missoula County attorney, after he’d already indicated that he would not seek reelection when his term expired, at the end of 2014. In November 2013, as the contretemps between Van Valkenburg and the DOJ escalated, the saga took a strange turn when Kirsten Pabst announced that she would be entering the race to replace her former boss as county attorney. In declaring her candidacy, Pabst told KECI television reporter Emily Adamson that the county attorney’s office needed “more cooperation and less fighting,” and then added, “I think most importantly we need more compassion.”

Twenty months earlier, when Pabst had resigned as chief deputy Missoula County attorney, she’d said she quit in order to spend more time with her “family and horses and dogs.” But a month after leaving the prosecutor’s office, she seemed to contradict this explanation by joining David Paoli as defense counsel for Grizzly quarterback Jordan Johnson. Then, during the long lead-up to the trial and throughout the debilitating trial itself, she and Paoli relentlessly vilified Johnson’s alleged victim, Cecilia Washburn, as part of their successful effort to persuade the jury that Johnson wasn’t guilty.

During the final six years of her fifteen-year tenure at the Missoula County Attorney’s Office, Kirsten Pabst had been responsible for overseeing the prosecution of sexual-assault cases. Most of the problematic cases mentioned in the DOJ report were either cases
Pabst had handled directly or cases managed by other prosecutors under her supervision.

While campaigning to run the county attorney’s office, Pabst disputed the veracity of the DOJ allegations. And if some cases had been mishandled by MCAO prosecutors while she was working there, she suggested, Fred Van Valkenburg was to blame. “I was in a place where I was really trying to effectuate positive change and I was running into barriers and it was difficult to do,” Pabst told
Missoulian
reporter Kathryn Haake. “As county attorney, I will be in a better place to make that happen.”

But if Pabst were to win the election and become county attorney, Haake pointed out, returning to the MCAO as
la patrona
was likely to be awkward, in light of criticisms some of her former workmates had made about Pabst’s tactics during the Johnson trial. Haake noted,

Deputy County Attorney Jen Clark said Pabst employed rape stereotypes and rape myths in her defense of Johnson. Clark admits that defense attorneys use such tactics, but it was shocking to witness that coming from a former colleague and prosecutor, she said….

“In the last couple of years, [Pabst] wasn’t very engaged as a supervisor and a mentor,” Clark said.

Clark also offered that her former boss “burned bridges” with other agencies, like First Step, Just Response and the Crime Victim Advocates Office.

“I am concerned about the future working relationships and communication with those agencies, particularly when dealing with sexual assault cases,” Clark said.

In an article posted on the website BuzzFeed, Katie J. M. Baker reported that Fred Van Valkenburg dismissed Kirsten Pabst’s attempts to deny responsibility for the MCAO’s problems and throw him under the bus instead. “I don’t take her statements about ‘it’s time to move the County Attorney’s Office in a new direction,’ ” Van Valkenburg told Katie Baker, “as anything more than political
rhetoric calculated to help her get elected.” According to Baker, Van Valkenburg said that when Pabst was chief criminal deputy attorney, she had free rein to establish any policy she thought was appropriate: “She was an integral part of the management of this office for over five years.”

Kirsten Pabst was running against two opponents in a primary election scheduled for June 3, 2014. Her rivals were Jason Marks, an assistant chief criminal deputy attorney at the MCAO who had worked under Pabst from 2007 until she quit in 2012, and Josh Van de Wetering, who’d served as Cecilia Washburn’s personal attorney, pro bono, throughout both the University of Montana’s adjudication of her case against Jordan Johnson and the criminal prosecution of Johnson by the MCAO. Because all three candidates were Democrats, and no Republican had registered to run, whoever won the primary would be the next Missoula county attorney.

Jason Marks had declared his candidacy in November 2013, a week before Pabst announced that she was entering the race. Marks pledged to cooperate with the DOJ, institute new policies for prosecuting cases, and improve communication with victims. But the MCAO’s reputation took such a savage hit from the DOJ investigation that in March 2014, a number of Marks’s supporters, including Missoula Mayor John Engen, urged him to suspend his campaign. Two months before the election, Marks dropped out of the running, explaining in a press release,

It has been difficult separating my work, and that of my colleagues, from the controversial issues surrounding this office and the DOJ investigation. I have heard loud and clear that voters feel it’s important to have someone outside the office become the next county attorney.

If Missoula voters wanted their next county attorney to be someone untainted by the failings of the MCAO under Van Valkenburg and Pabst, Josh Van de Wetering appeared to be in a perfect position to win the election. Although he’d worked as a deputy Missoula County attorney for two years early in his career, he’d left in 1998,
just before Fred Van Valkenburg started running the MCAO, to work for the DOJ as an assistant United States attorney. Van de Wetering was a well-regarded federal prosecutor when he quit in 2008 to go into private practice. In his campaign to become the new Missoula county attorney, he pledged to make sexual assault and violence against women “a top priority” and said he was eager to take “difficult cases” to trial and allow juries to determine the outcome.

Kirsten Pabst, however, wasn’t about to concede the election to Van de Wetering. Partnering with David Paoli to keep Jordan Johnson out of jail had made Pabst wildly popular with legions of Griz fans who were eager to see her defeat the lawyer who’d represented Johnson’s accuser—“the little woman who lied about rape,” as a female fan described Cecilia Washburn on an Internet forum.

During the 2012 football season, when Jordan Johnson was forbidden to play because he’d been charged with raping Washburn, the Griz won only five games and lost six. After he was found not guilty, during the 2013 season—which was under way when Pabst announced her candidacy—Johnson led the team to ten wins, three losses, and the FCS play-offs. This dramatic turnaround did not escape the attention of Pabst or anyone else in Missoula. She often boasted of her role in Johnson’s acquittal on the campaign trail, and she featured the verdict prominently on her website.

Although Pabst worked shoulder to shoulder with Paoli to defend Johnson, she did not join Paoli’s law firm. While practicing law as her own, one-woman firm, though, Pabst leased office space from Paoli’s firm, and when she decided to run for Missoula County attorney, Paoli volunteered to run her campaign. To raise funds for her, he created a political action committee, which he christened Montanans for Veracity, Diversity and Work, or MVDW—a cheeky reference to Van de Wetering’s initials. With Paoli’s support, Pabst conducted an extremely negative campaign, attacking Van de Wetering without letup.

In a breathtaking display of chutzpah, given her attacks on Cecilia Washburn in the Jordan Johnson trial and her reluctance to prosecute rape cases when she was chief deputy county attorney, Pabst used her resignation from the county attorney’s office in March 2012,
just before the DOJ investigation got rolling, to portray herself as a reformer and a longtime victim’s advocate. On a candidate questionnaire, she explained that she was running for the head prosecutor’s job because

[t]he next Missoula County Attorney needs the leadership, experience and vision to bring the office in a new direction. We need to restore the public trust through accountability, education and transparency. It is time for this divided community to begin healing….I am committed to better delivery of services to victims of crime…through cooperation, communication and compassion.

Compassion, Pabst emphasized, would be one of her primary objectives if elected:

Victims of crime are thrust into the court process through no fault of their own. Compassion means that we need to treat victims the way we would treat our own family, being conscientious of their trauma and fear while helping them navigate the criminal justice system, without forfeiting objectivity.

With the help of the MVDW PAC that Paoli established for her, Pabst received $29,000 in campaign contributions, more than three times as much money as Van de Wetering, who was not supported by a PAC. Among the most generous contributors to Pabst’s campaign was Paoli’s fellow defense lawyer and Griz booster Milt Datsopoulos. Four days before the election, MVDW mailed out thousands of flyers asking, “Can we trust Josh Van de Wetering to be our County Attorney?” The answer, according to MVDW, was no.

On June 3, 2014, after Missoulians went to the polls and the votes were tallied, Pabst received 7,762 votes, Van de Wetering received 4,559 votes, and Jason Marks received 1,018 votes. Kirsten Pabst was declared the presumptive Missoula County attorney, and was slated to begin her four-year term on January 1, 2015.

Six weeks after the election, the Montana commissioner of political practices, Jonathan Motl, ruled that MVDW had knowingly violated Montana law by failing to disclose campaign expenditures during the final days of Pabst’s campaign. Motl declared that both Van de Wetering and the public had been denied their right to know, prior to the election, exactly how much Pabst had spent for such things as the mailing that smeared Van de Wetering. Motl determined that the violation of Montana’s campaign practices laws by Paoli and MVDW’s treasurer, J. Michael Barrett, “was by choice and deliberate.”

Paoli and Barrett were required to pay a fine, but the amount was still being negotiated more than eight months after the election. Even though Pabst shared an office with Paoli and they’d worked together closely on her campaign, Motl uncovered no documents or other hard evidence indicating that Pabst and Paoli had “coordinated” on the expenditure of campaign contributions. The results of the elections were allowed to stand without challenge, and Pabst was not penalized in any way.

On June 10, 2014, a week after Kirsten Pabst was elected county attorney, Fred Van Valkenburg, now a lame duck, ceded to the inevitable, reluctantly abandoned his lawsuit against the Department of Justice, and agreed to comply with its directives for improving the prosecution of sexual assaults. Nevertheless, at a public event memorializing the agreement, Van Valkenburg stood at the podium and let it be known that he hadn’t given up the fight willingly.

Continuing to insist that the DOJ had no jurisdiction over his office, Van Valkenburg groused that the unsparing report issued four months earlier by Acting Assistant U.S. Attorney General Jocelyn Samuels “was the single most unprofessional thing I have seen in my practice of law in 41 years. It hurts hugely to see my staff defamed….I can’t tell the number of sleepless nights I’ve had thinking about how this happened. Why did the United States Department of Justice do what they did here?”

As Van Valkenburg uttered these words, Jocelyn Samuels was standing a few feet away. After he finished speaking, she made it clear that she disagreed with his assessment of the DOJ’s investigation. If
the lawsuit hadn’t been dropped, and the DOJ had been forced to go to trial, Samuels stated, “I am confident we would have prevailed.
*
That said, today is a day for looking forward.”

      B
y the time Fred Van Valkenburg abandoned his suit against the Department of Justice and started preparing for his retirement, the underlying causes of the Missoula rape scandal were clear. The University of Montana, the Missoula Police Department, and the Missoula County Attorney’s Office all shared responsibility.

Until media attention forced the university to take action, its policies for handling sexual-assault allegations were confusing and, occasionally, contradictory. Sometimes university officials didn’t report sexual assaults to the Missoula police. Sometimes campus safety officers didn’t report sexual assaults to the Missoula police. These mistakes were corrected quickly once they were recognized, however. A much thornier and more vexing problem was the popularity of the university’s football program, along with the millions of dollars it contributed to the local economy. The adoration of the Griz football team created a pernicious atmosphere of entitlement. Coaches reinforced the team’s sense of prerogative by failing to report athletes accused of sexual assault or other crimes to university officials.

For its part, the Missoula Police Department enabled rapists to escape accountability by neglecting to provide up-to-date training for detectives and patrol officers, which allowed hidebound stereotypes and invidious misconceptions about rape victims to undermine the effectiveness of sexual-assault investigations. To the police department’s credit, soon after it was made aware of its shortcomings, it took significant steps to rectify them, even before the DOJ launched its investigation. In March 2012, for example, the police department
enacted a new policy requiring cops to begin sexual-assault investigations by believing the claims of victims—the policy that Kirsten Pabst and David Paoli so vehemently maligned at the Jordan Johnson trial. Additionally, as soon as the DOJ announced its investigation of the police department, it immediately agreed to cooperate with the feds, demonstrating a genuine desire to fix what was broken.

Which brings us to the Missoula County Attorney’s Office. When apportioning blame for Missoula’s rape crisis, it’s fair to say that the MCAO deserves the lion’s share. But its failings did not result, by and large, from incompetent deputy county attorneys. Most of the MCAO prosecutors are in fact talented, highly dedicated public servants. The fundamental cause of the breakdown, rather, was an office culture that neither encouraged prosecutors to aggressively pursue challenging cases nor provided them with the specialized training necessary to do so effectively. The many bungled cases, that is to say, resulted from the failure of Kirsten Pabst and Fred Van Valkenburg to give their staff the guidance, training, and support they needed to be effective.

As the DOJ report pointed out, the successful prosecution of rape cases—particularly cases involving non-stranger rape—requires a sophisticated grasp of the latest legal and scientific knowledge. “It is imperative,” the report admonished, “for state and local prosecutors to be aware of rape myths and how juries may be influenced by these myths.” Prosecutors needed to understand the neurochemical basis for the counterintuitive behavior that victims often display during sexual assaults, and in their aftermath. They had to be able to explain to juries why rape victims don’t always respond in a manner that conforms to jurors’ expectations, as well as why victims may not be able to recall the details of being raped. Prior to the initiation of the DOJ investigation, the report noted, “the County Attorney’s Office provided little, if any, such training.”

The prosecutors’ inadequate training not only impeded the effectiveness of the MCAO, it also impeded the ability of the police department to carry out its duties. Police detectives, according to the DOJ report, were “frustrated” by the refusal of the MCAO to prosecute seemingly strong cases:

The work of Missoula Police detectives is compromised by the fact that, even if they expend the resources to conduct a comprehensive investigation, the Missoula County Attorney’s Office often will not charge the case. One woman reported that the Missoula Police detective in her case informed her that because “no one had a limb cut off and there was no video of the incident,” prosecutors “wouldn’t see this [the rape] as anything more than a girl getting drunk at a party.”…[I]n one case from early 2013, a detective told both the victim and the offender…that the County Attorney’s office would never file charges in the case—despite the fact that the detective acknowledged to the victim that she had been raped by the offender.

After reviewing police files for more than three hundred sexual-assault cases, a prosecutorial expert brought in to assist the DOJ investigators concluded that in some instances, “Missoula Police officers had developed substantial evidence to support prosecution, but MCAO, without documented explanation, declined to charge the case.” This expert noted that the county attorney’s office refused to prosecute some sexual-assault cases even when detectives provided prosecutors with a confession or an eyewitness.

Between 2008 and 2010, every time the Missoula police referred a case to the MCAO for prosecution, detectives included a form that prosecutors were supposed to fill out if they rejected the case, explaining their reasons for doing so. But prosecutors “rarely documented their decision to decline prosecution in a meaningful way,” according to the DOJ report. The most common explanation written on the referral forms was simply “insufficient evidence” or “insufficient corroboration.” In cases submitted after 2010, DOJ investigators discovered that prosecutors didn’t bother returning the forms at all. This was extremely frustrating to the police detectives, because they were the ones who had to inform victims that their cases had been closed, but they weren’t given any specific information they could offer to these victims about why the MCAO had declined to prosecute.

In one case described in the DOJ report, the Missoula police obtained a confession from a man who admitted raping a woman
while she was unconscious. The Missoula police referred the case to the county attorney’s office with a recommendation that the prosecutor charge the suspect with rape, but the county attorney’s office declined to file any charges, citing “insufficient evidence.” In another case, the report continues,

the Missoula Police obtained incriminating statements from a suspect who admitted to having intercourse with a mentally ill woman, including statements that he couldn’t “determine” how soon he had stopped having sex with the woman after she asked him to stop and told him he was causing her “vagina” to “hurt.” The Missoula Police referred the case to the County Attorney’s Office, recommending that the prosecutor charge the suspect with sexual intercourse without consent. Despite the incriminating statements, the County Attorney’s Office declined to bring any charges in the case.

THE MISSOULA RAPE
crisis aired a lot of unpleasant truths and generated no small amount of anguish. More than a few of those tainted by the scandal remain in denial, like Fred Van Valkenburg. But the reforms prompted by the
Missoulian
’s reporting and the subsequent DOJ investigation were significant, nevertheless. The revamped practices have already increased the likelihood that any given sexual assault in Missoula will be successfully prosecuted, even with Kirsten Pabst now running the Missoula County Attorney’s Office. The agreement between Van Valkenburg, the Montana attorney general, and the U.S. Department of Justice requires the MCAO to submit to two years of oversight by an independent “Technical Advisor,” who will be paid $150,000 to keep close tabs on the effectiveness of the MCAO under Pabst’s leadership.

It should be reiterated, moreover, that the deficiencies at the heart of the Missoula imbroglio were not unique to western Montana. The DOJ investigation identified 350 sexual assaults of women that were reported to the Missoula police during the fifty-two months from January 2008 to May 2012. The Bureau of Justice Statistics estimated that in 2010, the annual rate of sexual assaults of women in cities with
populations under 100,000 was 0.27 percent, which for Missoula
*
¹
equates to 90 female victims per year, or 390 over a period of fifty-two months. This suggests that, rather than being the nation’s rape capital, Missoula had an incidence of sexual assault that was in fact slightly less than the national average. That’s the real scandal.

Part of the reason so many rapists are able to offend with impunity is that our adversarial system of justice “has erected formidable procedural obstacles to conviction,”
*
²
as Richard A. Posner explains in his book
The Problems of Jurisprudence:

These have succeeded in reducing the probability of convicting innocent persons to an extremely low level, but the price is that many guilty persons are acquitted (especially those who can afford to hire top-quality lawyers), or are allowed to plead guilty to crimes much less serious than those they actually committed.

Posner, the most cited legal scholar in the country, is a Republican who was nominated by President Ronald Reagan to a seat on the U.S. Court of Appeals for the Seventh Circuit. And here’s what a liberal Democrat, Harvard Law School professor Alan Dershowitz, has to say about our adversarial justice system in his provocative book
The Best Defense:

I have learned that despite the constitutional presumption of innocence, the vast majority of criminal defendants are in fact guilty of the crimes with which they are charged. Almost all of my own clients have been guilty….

I am not unique in representing guilty defendants. That is what most defense attorneys do most of the time. The Perry Mason image of the heroic defender of innocent victims of frame-ups or mistaken identification is television fiction….

Once I decide to take a case, I have only one agenda: I want to win. I will try, by every fair and legal means, to get my client off—without regard to the consequences….

There’s an old story about the lawyer who has just won a big case for his client and cables him: “Justice has prevailed.” The client fires off a return telegram: “Appeal immediately.” The story underlines an important point about the realities of our legal system: nobody really wants justice. Winning is “the only thing” to most participants in the criminal justice system—just as it is to professional athletes. Criminal defendants, and their lawyers, certainly do not want justice; they want acquittals, or at least short sentences….

The courtroom oath—“to tell the truth, the whole truth and nothing but the truth”—is applicable only to witnesses. Defense attorneys, prosecutors, and judges don’t take this oath—they couldn’t! Indeed, it is fair to say the American justice system is built on a foundation of not telling the whole truth. It is the job of the defense attorney—especially when representing the guilty—to prevent, by all lawful means, the “whole truth” from coming out.

Because the legal system stacks the deck more heavily against sexual-assault victims than victims of other crimes, it’s easier to keep the whole truth from coming out when the defendant in question has been charged with rape. It’s part of the cost of the constitutional right to due process.

Nevertheless, a small but influential cadre of cops, prosecutors, and academics has developed a set of “best practices” that can help prosecutors win more rape trials, even while scrupulously respecting the rights of the accused. These practices have been systematized by the National District Attorneys Association and End Violence Against Women International, and they are now being taught to cops and prosecutors nationwide. Seminars are offered in such subjects as the science of trauma, in order to improve techniques for interviewing rape victims and help prosecutors debunk rape myths when they face skeptical jurors.

Similar skills are being taught to university adjudicators of sexual-assault cases. But holding campus rapists accountable presents a set of unique challenges, because the university adjudication process hasn’t been standardized and, thus, varies tremendously from one institution
to another. A handful of colleges and universities have established effective systems for investigating and resolving rape allegations, but at too many institutions of higher learning, the procedures for adjudicating sexual-assault cases bring to mind a goat rodeo and are fair neither to victims nor those accused of assaulting them. Some of the country’s most esteemed universities (Harvard being a prime example) have the most dysfunctional, poorly conceived sexual-assault policies.

In April 2014, to encourage universities to come to grips with the problem, President Barack Obama released a report titled “Not Alone,” which announced a detailed plan to provide schools with protocols for improving their response to sexual assaults. A few days later, to turn up the heat, the U.S. Department of Education’s Office for Civil Rights publicized a list of fifty-five colleges and universities under investigation for violating federal laws concerning the handling of sexual-violence complaints. The list, which has since grown to more than ninety schools, includes many high-profile institutions, among them Harvard; Princeton; Dartmouth; Amherst; the University of California, Berkeley; the University of Colorado; the University of Denver; the University of Connecticut; Florida State; Emory; the University of Chicago; Boston University; the University of Massachusetts, Amherst; Michigan State; Sarah Lawrence; Ohio State; Swarthmore; Temple; Vanderbilt; and Southern Methodist University.

Critics have attacked the Obama administration’s plan, insisting that universities have no business adjudicating sexual assaults. The American Council of Trustees and Alumni (ACTA), a conservative organization founded by Lynne Cheney, the wife of former vice president Dick Cheney, has been one of the most vocal critics. In a statement released to the media in June 2014, ACTA president Anne D. Neal wrote,

Sexual assault is a serious matter.

That is why Congress should vigorously oppose efforts by the Obama Administration and the Department of Education’s Office of Civil Rights (OCR) to reduce criminal matters to sensitivity brigades on our college campuses.

Rape and sexual assault are felonies and they are matters for
the police and criminal justice system—not universities. The higher education community simply is not equipped to play judge, jury and executioner in matters that require the careful eye of police and jurists. Both accusers and the accused are given short shrift when due process and the Constitutional safeguards of the criminal justice system are swapped for amateur investigators and ad hoc college tribunals….

Title IX—which initially focused on gender equity in college sports—has now become a catch-all provision to justify massive federal intrusion. Congress should take steps immediately to roll back this unintended expansion, first, by defunding the OCR until there is public notice and rulemaking on these issues. OCR should not be allowed, for example, to lower evidentiary standards in disregard of Constitutional principles and Americans’ deep respect for due process—by bureaucratic fiat….

It should come as no surprise that, when students admit to spending a majority of their time sleeping and socializing, as they do today, they fill the void created by a lack of academic rigor and substance with drinking and extreme behaviors.