On a July morning inside a Missoula County courtroom, a sheriff's deputy leads a shackled man in an orange jumpsuit to stand in front of Missoula District Judge Karen Townsend. As the shackled man shuffles toward the podium, he nods smugly at a woman in the back row.
The man is being charged with failing to register as a violent offender. He was initially convicted of felony partner member assault. His girlfriend admitted to police that he choked her into unconsciousness. When released from prison, the muscular man with short hair lied about where he was living and allegedly contacted the woman that he had abused. He now faces up to 15 years in prison and a $60,000 fine. His attorney argues that the couple is in love and the restraining order creates a problem.
"How do you plead?" Townsend asks. The defendant says, "Not guilty."
Missoula County Attorney Fred Van Valkenburg rises. He explains that the man committed an extremely violent offense. "He gave a false address, was deliberately trying to deceive his probation officer... The woman was a co-conspirator," Van Valkenburg says.
The judge agrees with the county attorney and the man is led away. He'll remain in jail and won't be allowed to see the woman, who today, while leaving the courtroom, directs a hard look at Van Valkenburg. She departs holding a child's hand.
This is the start of a typical day for Van Valkenburg. As Missoula County's chief attorney, his job is to take a stand and argue for what he believes is right for the electorate, no matter how unpopular his stance may be. He's been good enough at his job to be re-elected three times—and he ran the last time unopposed, taking 95 percent of the vote. But after a 40-year career in public service—he says he won't run for the office again—the job is starting to wear on him.
The stress is clear when he sometimes holds his head in his hands while in court. His wife says he's crankier now than he once was. He also talks about his frustration with recent criticism of his office, which has surpassed the usual hard stares of his opponents in the courtroom.
The past two years have been especially tough on the 65-year-old Van Valkenburg. In May 2012, the Department of Justice launched an investigation into how the county attorney's office, along with the Missoula Police Department and the University of Montana, handled sexual assault investigations during a four-year period. While MPD and the university cooperated with investigators and accepted their findings, Van Valkenburg has consistently struck an obstinate tone, maintaining the investigation signals a significant overstep by the federal government. His stand has drawn widespread criticism from community members who wonder why he won't just cooperate, especially if he's got nothing to hide.
It's not the first time Van Valkenburg has taken a controversial position. Throughout his career he's made headlines debating issues such as marijuana laws, the guilt of high-profile defendants and to what extent women should be ensured equal rights. Some of his stances have been more popular with voters than others, but in each case he's fiercely defended his side. Van Valkenburg's stubbornness is so much a part of his public persona that most locals likely envision him as perpetually red-faced and argumentative, unmoved by opposing opinions.
But as Van Valkenburg faces more criticism than ever before, including the ongoing scrutiny of federal investigators, he's not about to change his ways.
On Dec. 15, 2011, the story first broke. Gwen Florio of the Missoulian reported that the University of Montana was hiring an investigator to determine whether several male students assaulted two female students earlier that month.
The next day, Florio elaborated on the allegations in a second article, reporting that at least three UM football players were allegedly involved in a sexual assault of two women that may have involved Rohypnol.
In an interview with the Independent, Florio recalls how the story developed. That winter, rumors of an alleged gang rape had spread across the campus community and the media. "It was one of these things that went around town like wildfire," Florio says. "So we were scrambling to confirm it." Former UM Vice President Jim Foley told her that the university was looking into claims that date rape drugs were used to impair a UM student.
Once the initial articles were published, additional women came forward with stories of victimization, Florio says. One young woman told Florio that she had been sexually assaulted the year prior, in 2010, by UM football players at an off-campus house party. The 2010 incident sounded strikingly similar to the one that allegedly occurred in December 2011. Florio had two separate alleged victims who both claimed that they had been gang raped in two different incidents.
The woman involved in the 2010 incident reported the assault to police, but Van Valkenburg's office declined to prosecute.
The student's mother in that case told the Missoulian that the family felt their concerns were brushed off by law enforcement. In the months that followed, Florio reported that a UM exchange student accused of one rape and one assault fled the country before charges were filed against him. In January 2012, she documented UM football player Beau Donaldson's confession to sexual intercourse without consent, a charge that he was later convicted of. In July 2012, meanwhile, allegations surfaced that UM quarterback Jordan Johnson raped another student. Johnson was prosecuted and found not guilty after a jury trial.
"I was disturbed to find the extent of it," Florio says. "A number of people, Fred included, have said Missoula's problem is no worse than anybody else's and that kind of makes my hair curl when I hear that. Because it's not that our problem is no worse, it's that the problem exists and exists to an extent that it seems like many, many people, myself included, were not aware of."
Florio's reporting divided the community. On one side, victim's rights activists called on law enforcement, including Van Valkenburg's office, to more seriously weigh allegations of sexual assault. On another side there were die-hard Griz fans and skeptics who claimed Florio was engaging in a witch-hunt. Critics called her a man-hater and a lesbian.
Florio took most of it in stride. However some of the barbs were surprisingly sharp, even for the veteran journalist.
"I don't mind my reporting being criticized," Florio says. "There are people who don't like it. As with this case as with a lot of cases around the country involving athletes, there's a real hair-trigger reaction when these kinds of allegations are leveled from certain quarters. What struck me about it was that the criticism was so sexualized. I'm not just a bad reporter; I'm a cunt. It's like, 'Whoa, okay then.'"
Van Valkenburg was among those who publicly criticized Florio's reporting, albeit using significantly less loaded language. During a City Club Missoula forum in June, he blamed the Missoulian for helping to foment a national scandal.
When asked to elaborate, Van Valkenburg itemizes numerous problems with the paper's reporting. For one, the crime lab has never seen a case involving Rohypnol, he says. Secondly, there simply wasn't sufficient evidence in the 2010 case to prove there was a gang rape.
"I think that clearly the evidence in the case indicates that what happened was with consent, not without consent," he says. "There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don't think because it's odd makes it automatically a non-consensual situation."
The alleged victim in the 2010 case was intoxicated, but not to the point that she couldn't legally grant consent, Van Valkenburg says, while acknowledging that's a blurry line to draw. Another problem impeding prosecution was the fact that the second woman who engaged in sexual conduct at the 2010 gathering reinforced what the men had told police—that the sex was consensual.
"That's the evidence that we're dealing with. It's not just one woman's say-so against some guys," he says. "You don't have a case you can prosecute and you don't have a case you can call a gang rape."
Van Valkenburg referred the 2010 allegation to the Attorney General's Office for review. The AG's Office agreed that there was not sufficient evidence to prosecute.
Regarding the 2011 allegations, that incident, while investigated by UM, was never referred to the county prosecutor.
After two years of allegations, Van Valkenburg says he's frustrated that the Missoulian repeatedly reported unproven claims. "I've talked to the editor of the Missoulian numerous times about issues about accuracy," he says, "and really haven't gotten much satisfaction."
Four months after Florio broke the story about the alleged gang rapes, Van Valkenburg walked from his office inside the Missoula County Courthouse to meet with U.S. Attorney Michael Cotter in downtown Missoula. It was April 30, 2012, and Van Valkenburg was upset.
When he arrived at the U.S. attorney's office, Van Valkenburg was greeted by Cotter and Jonathan Smith, who's in charge of the DOJ's Civil Rights Division Special Litigation Section. The men sat at a rectangular conference table and talked about the DOJ's intention to look into the county attorney's office. On May 1, the agency would publicly announce that it was launching an investigation into allegations that Van Valkenburg and his staff had failed to prosecute sexual offenses and, thereby, discriminated against women.
An indignant Van Valkenburg demanded to know what evidence the DOJ had to prove discrimination. They wouldn't disclose anything to bolster their claims, Van Valkenburg says.
"When they came, I really wanted to know what it was they said that we were doing that was in violation of the law," Van Valkenburg recalls. "They absolutely refused to say. They just, they won't tell you anything and that's true just as much today as it was in May 2012."
Refusing to provide evidence to the accused runs contrary to primary criminal justice system tenets, Van Valkenburg says. Furthermore, the DOJ's attempted investigation of his office is unprecedented; never had the department attempted to delve into civil rights law violations allegedly made by a county prosecutor.
While UM and the Missoula Police Department allowed similar inquiries, and accepted DOJ mandates about how to proceed with sexual assault allegations, Van Valkenburg has steadfastly refused to cooperate. He believes that to allow such an investigation would set a dangerous precedent, one that would invite, as he puts it, "the heavy hand of the federal government" into thousands of district attorneys' offices across the nation.
The DOJ has remained mum on how it will go forward in light of Van Valkenburg's refusal. That silence leaves a looming uncertainty that the federal government will sue the county attorney's office in an effort to force cooperation.
While the situation remains unsettled with Van Valkenburg's office, the DOJ did provide closure to those who cooperated with its efforts. On May 10, the DOJ announced its findings from a yearlong investigation into how the Missoula Police Department handled more than 350 reports of sexual assault between January 2008 and May 2012. Among other things, the report mentioned significant flaws in communication between police and the Missoula County Attorney's Office.
"MCAO generally provides no information to MPD about why it has declined to prosecute a sexual assault case," the report stated. Similarly, federal investigators said, "attorneys rarely documented their decisions in a meaningful way" and reported that MPD officials told them "that detectives are 'frustrated' with MCAO's 'lack of follow-up and prosecution in cases of sexual assault.'"
Those findings only served as fuel for community members who continue to say Van Valkenburg needs to cooperate with the DOJ's investigation.
"If the aim is restoring credibility, I think resisting any sort of outside review doesn't restore credibility," says Missoula City Councilwoman Cynthia Wolken. "I think it sort of prolongs the questions that people have."
Questions linger about whether law enforcement, including Van Valkenburg's office, is adequately vetting crimes against women. Wolken says that makes the already difficult act of reporting a sex crime even more daunting.
She's heard from roughly five women who have said that their reports of victimization either weren't treated seriously, or that they were fearful of reporting due to a perception that Missoula hasn't taken these crimes seriously. "They just felt uncomfortable with an already really hard situation," Wolken says.
She says that's why it's important for the county attorney's office to do everything in its power to make victims more comfortable. "Even if you don't want the DOJ to come in," Wolken says, "then how about get another third party to come in and do an independent audit of your operation?"
Van Valkenburg says that he is willing to open sexual assault cases referred to the county attorney for public scrutiny. But he won't do it under the threat of litigation from the DOJ.
He also admits that his office is not perfect. "There isn't anything that you can't always do a better job at," he says. "I think that one of the things that we weren't particularly good at was explaining reasons that we had declined prosecution in cases, and having better communications with victims. We can certainly do a better job at that."
Van Valkenburg is willing to work with the community and his colleagues in law enforcement to make improvements. With those concessions, however, he's drawn a line in the sand, one that the DOJ will have to file a lawsuit to cross.
In February 2011, marijuana activists and law enforcement alike felt under siege as Montana legislators deliberated how best to tweak the state's 2004 Medical Marijuana Act. As passed by 62 percent of voters, the law made it legal to use cannabis for debilitating medical conditions.
In the years after the law's passage, the state's marijuana industry thrived. In June 2011, there were roughly 30,000 people listed on a state registry of medical marijuana patients. But as cannabis dispensary storefronts popped up across Montana, law enforcement complained that policing drug crimes had become extremely challenging.
While the Medical Marijuana Act opened a can of worms for police statewide, Missoula was grappling with another layer of complexity. In 2006, 55 percent of Missoula County voters passed Initiative 2, which called upon Missoula County law enforcement to make marijuana its lowest priority. Cannabis proponents praised the initiative as a move toward a saner drug policy. Law enforcement was confused about how to proceed.
"I was getting a lot of complaints from particularly the highway patrol," Van Valkenburg says. "They couldn't understand why somebody who had marijuana in their car when they got stopped on the highway wouldn't get prosecuted in Missoula, whereas if they were in Butte or Billings or anywhere else they were going to get prosecuted."
Van Valkenburg says that for years his office de-prioritized misdemeanor marijuana possession prosecutions. But as marijuana became increasingly pervasive, he was falling under increased pressure from law enforcement to take action and undermine what local constituents had voted for.
During the 2011 legislative session, Van Valkenburg recruited Republican Rep. Tom Berry of Roundup to carry House Bill 391, which aimed to make it unlawful for local voters to tweak state laws. The legislation would bar similar low-priority initiatives so, as Van Valkenburg says, "this situation couldn't happen again in another community."
The move drew criticism from marijuana advocates, such as Councilwoman Wolken, who testified at the legislature against HB 391. She called Van Valkenburg's proposal "an end-run around the voters of Missoula County."
Wolken, who previously served on the National Organization for the Reform of Marijuana Laws board in Montana, first became interested in marijuana prohibitions when her mother fell ill with pancreatic cancer. The drug's stigma kept her mother from using it to ease symptoms of pain and nausea, she says.
Wolken felt that Van Valkenburg was actively working to trump the will of the local electorate with HB 391. It's telling, she says, that he had to recruit a lawmaker from the eastern part of the state to sponsor the bill. "It's a bit troubling, I think, when an elected official so clearly goes and tries to get the sentiments of his own voters overturned at the legislature."
She also notes that it's somewhat ironic to compare how the county attorney responded to medical marijuana and cases of sexual abuse.
"I don't understand why, when it affects victims of violence, there is a huge jurisdictional issue, but not when it's over non-violent marijuana possession and growing. That's a puzzling angle for me," she says
In response to such criticisms, Van Valkenburg says he examined how Missoula voted on Initiative 2 and that it was city residents who supported the measure, not voters in the county. He says that doesn't make a whole lot of sense in light of the fact that the initiative directed county law enforcement, not the Missoula Police Department, to back off marijuana arrests.
HB 391 ended up passing.
Despite his position on the issue, the prosecutor says he personally doesn't have a problem with marijuana. If the pro-cannabis community wants to legalize it, there's a way to do so that doesn't require passing local initiatives that conflict with federal law. The more direct approach is to lobby the U.S. Congress to change federal drug laws.
"I don't think marijuana is really something that really is a scourge on society," Van Valkenburg says.
Van Valkenburg wasn't always such a lightning rod for criticism. In fact, he made his mark in Montana politics by fighting for such popular issues as equal rights and fair representation.
Van Valkenburg grew up in Billings and attended Catholic school during a volatile time in U.S. history. His adolescent hero was John F. Kennedy, the first Catholic to be elected president. In 1963, when Van Valkenburg was a sophomore at Billings Central Catholic High School, Kennedy was assassinated. Five years later, Martin Luther King was gunned down in Memphis. The next year, a jury convicted Sirhan Sirhan of killing Bobby Kennedy.
While attending high school, Van Valkenburg played quarterback on the football team and served as student body treasurer and class president. His penchant for leadership surfaced early.
He met his wife, Carol, at Gonzaga University in Spokane, where they were both students. He was a junior. Carol was a freshman. She applied for a job with the school food service, where Van Valkenburg was a manager. Van Valkenburg initially didn't want to hire her.
"He knew that my father was a doctor," Carol says. "He decided therefore I didn't need a job, and so somebody else should get it."
Fred's supervisor overruled him. Carol got the job and set to work running utensils from the food service kitchen to the dining area. Carol wasn't initially smitten with her future husband, but she was drawn to his ability to lead.
"I liked the fact that he was a sort of a boss," she recalls. "He was a student, but was one of the bosses. He was the student-manager boss."
In 1970, Fred Van Valkenburg earned a bachelor's degree in business administration from Gonzaga. He and Carol returned to their home state (Carol is from Great Falls), and they both enrolled at the University of Montana. Carol studied journalism and Fred started law school. The couple married in 1971.
After graduation, Fred Van Valkenburg worked as an assistant city attorney for Missoula and then went into private practice. Through his practice, he began accepting public defender work.
Carol recalls that Van Valkenburg was far from calloused at the beginning of his career. He invited his first public defender client to store his belongings in the family's garage. When Van Valkenburg lost the case after a trial, his client was sent to prison.
"Fred actually cried about it, because he really felt for this guy," Carol says. "I think that he felt that he was not guilty."
In the course of defending indigent clients, Van Valkenburg quickly realized that prosecutors were receiving significantly more funding than public defenders. Aiming to remedy the inequity, he crafted a bill to fund a statewide public defender system and found a lawmaker to carry it. During the 1977 Montana Legislature, he headed to Helena to make his pitch.
A hopeful Van Valkenburg waited at the Capitol for more than two hours before his bill was called. It was late, maybe 9 p.m., when he presented the idea to the House Appropriations Committee. Within minutes, the body tabled Van Valkenburg's proposal. They barely even considered it.
The admittedly naïve Van Valkenburg stewed, as is his nature. "It was a real eye-opener to go in there and find out that your bill could be killed within five minutes of the time you made a presentation in front of a committee," he says.
Unwilling to give up, Van Valkenburg took note and made a plan. If he wanted to change the system, he figured he had to do it from the inside. He set to work planning an electoral campaign and declared himself a Democratic candidate for the Montana Senate.
After winning the primary by just 40 votes, Van Valkenburg took on Republican Bill Murray in the general election. Murray had an inconsistent track record voting on the Equal Rights Amendment, which was among the most contentious issues of the time, and had alienated female voters, according to Van Valkenburg.
"I had a whole squadron of women who wanted to take out Murray who got behind my candidacy," Van Valkenburg told Bob Brown during a 2009 interview conducted for the Montana Oral History Project.
The ERA, as passed by the United States Congress in 1972, sought to implement stronger prohibitions against gender discrimination. In order to codify the legislation, a supermajority of states was required to endorse it. During the '70s and '80s, battles raged over ERA ratification throughout the nation, and Montana was no different. In 1974, Montana lawmakers signed off on the amendment. During nearly every subsequent legislative session through 1982, however, "pro-family" groups, such as the Daughters of the American Revolution, the John Birch Society and the National Council of Catholic Women, lobbied lawmakers to reverse that decision.
In 1978, voters elected the 29-year-old Van Valkenburg to the Montana Senate for what would become a 20-year legislative tenure. His former colleague, Democratic Rep. Dorothy Bradley, says that Van Valkenburg was a natural lawmaker. That's why his peers repeatedly voted him into senior positions, including Senate president and Democratic minority leader.
"When it came to leadership, he was one of the greats," Bradley says. "When it came to style, I always thought he was two-thirds gifted debater and one-third rascal."
Van Valkenburg's rascally side came out when a Great Falls legislator introduced a bill aiming to require newspapers to sign their editorials. At the time, Carol Van Valkenburg was employed at the Missoulian, writing the newspaper's opinion pages.
Van Valkenburg argued that constitutional protections ensure a free press, but was making little progress and decided to change tactics. He pointed out that the bill was flawed because it omitted a penalty provision. With tongue firmly planted in cheek, he proposed an amendment to make the penalty death. The move showed Van Valkenburg's sense of humor and his relentlessness.
"He thinks it's his job to go to the mat for an issue that he holds as important," Bradley says. "I really respected his ability to fight, even if I wouldn't go that far myself."
Van Valkenburg's commitment to "go to the mat," as Bradley says, is perhaps best illustrated by his support of a statewide sales tax, one that aimed to increase funding for the Montana University System, among other priorities. When Bradley ran in 1992 for governor, her sales tax plan was central to her platform. The pitch was politically volatile, one likely to alienate some voters. But Van Valkenburg told Bradley that if she won the election, he'd like to carry the legislation. "I can tell you this: He was the only one that ever said that," she says. "It's the worst of the worst issues."
One of Van Valkenburg's most contentious debates stemmed from his goal to prohibit insurance companies from setting gender-based rates. As Van Valkenburg recalls the issue, insurance companies had deemed women inherently sicklier than men and also more prone to automobile accidents and, therefore, were charging them more for coverage.
In 1983, he won that fight, persuading his colleagues at the legislature to create the Unisex Insurance Law. It constituted the first such prohibition against rate discrimination in the nation. During the past three decades, attempts to reverse the mandate have occurred at nearly every legislative session, most recently this year.
Van Valkenburg's efforts to create a public defender system—his original reason for entering state politics—were unsuccessful, but a 2002 lawsuit filed by the American Civil Liberties Union led to the creation of something similar to what Van Valkenburg proposed in 1977.
As for the ERA, Montana did not reverse its ratification, as other states did. But the legislation fell short of the 38 states required to become law.
Bradley says that Van Valkenburg's imperviousness to political fallout—his fearlessness—makes him an unusual politician, especially in today's hyper-partisan climate.
"I have thought in a lot of my career that there are two types of legislators, and I'm sure there's more than that, but there are those that go to the mat and those that go to the wind," she says. "And what it's always meant to me is that, when you go to the mat you're not obsessing about the next election—it's the furthest thing from your mind. You're obsessing about that issue and the importance of it, and what its mark is, what its milepost is in the history of Montana. And he was a go-to-the-mat legislator."
On a recent weekday morning, it's hot and smoky outside, but cool in Van Valkenburg's office at the Missoula County Courthouse. The prosecutor wears glasses and a checkered shirt. His grey hair is messy in the back. Sticky notes are affixed on legal filings piled on his desk, not far from a gold coin branded with the Montana state seal. White boxes filled with court documents are stacked in corners. Hanging on the wall is a picture of two bison, horns locked. It seems a reminder of the antagonism inherent to Van Valkenburg's position.
Today he's reviewing charging documents filed by law enforcement the night prior. One of the allegations comes from a 5-foot-3, 130-pound woman who alleges that her 6-foot, 310-pound husband assaulted her.
Roughly 25 percent of the cases that came through Van Valkenburg's office are related to sexual and domestic violence. Like so many other things the county prosecutor deals with, the details in these types of cases are ugly.
"Sometimes it's just unbelievably horrible," he says. "You just think, 'Where do these people come from?' I don't live in this world. It's just amazing."
Van Valkenburg's skin has thickened since 1998, when he was first elected Missoula County Attorney and charged with overseeing all felony prosecutions within Missoula County, along with misdemeanor offenses that occur outside of city limits. "You sort of get numb to it over time," he says.
When he first became a prosecutor, Van Valkenburg had a harder time sending people to prison, he says. That's typical of the profession.
"When you first start out, it can be really emotionally difficult," he says. "The first time you get up and argue that somebody should go to prison, and they actually go, and you hear the handcuffs getting put on them, and they're hauled off, it can be kind of taxing."
Even now, Van Valkenburg is admittedly emotional. He cares what people think about him. His wife says he reads online comments posted on news stories about his cases. He's nervous about being profiled by a newspaper because it may open him up to even more criticism. He likes to think of himself, and the people who work for him, as the good guys—or women, as is the case with roughly half of his 17 deputies.
"The prosecutor is wearing a white hat, because the prosecutor by and large is representing victims of crime that through almost no fault of their own have been subjected to injury, to theft of their property, to intimidation by other people," Van Valkenburg says. "And the only way that they get any justice is if the state, in the person of the prosecutor, stands up and makes their case on their behalf."
Van Valkenburg's time wearing the white hat is coming to a close and Carol, for one, is excited about the opportunity to travel with her husband. She expects they'll spend more time with their two children and four grandchildren, who live in Baltimore and Denver. But she's also apprehensive about her husband growing bored quickly. He's not a "tinkerer," she says. And he doesn't have any real hobbies outside of golf.
While she's strikingly candid about her husband's idiosyncrasies, she's also fiercely protective. She gets angry when she feels he's been unfairly targeted. For instance, she respects her husband's stance on the DOJ investigation and has spoken with others who do, too. She notes that the National District Attorneys Association has lent him support, with NDAA President Michael S. Wright in June opining that the DOJ was treading into dangerous territory by attempting to exert its oversight upon autonomous district attorneys. She also notes that her husband has been the only one to stand up to outside investigators who descended on Missoula the last two years.
"There are a lot of people who would have liked to stand up to the Department of Justice, who didn't, or to the NCAA, or whatever, who didn't because they politically couldn't," she says.
Support such as that helps alleviate the sting of the criticism, but it doesn't change what's been a challenging stretch at the end of her husband's long career.
"He always loved his job. And in the last couple of years, he hasn't loved it," she says. "It's so much stress—and that questioning about well, 'Are you really doing your job correctly? Are you really an ethical, principled person?' And that's how he sees what he's being asked—that his ethics aren't really what they should be, that he's not charging cases that he should. And to be under that criticism, with no evidence, I think it's very pressing on him. And I think he comes home kind of mentally exhausted."
Fred admits he's looking forward to a period of recuperation. In fact, he actually smiles when talking about the future. "Hopefully it doesn't involve arguing with people," he says.