Still fighting 

County Attorney Fred Van Valkenburg stands firm in the face of mounting criticism

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"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.

click to enlarge Fred Van Valkenburg at his University District home. The county attorney served nearly 20 years in the state legislature before being elected to four terms in his current position. - CATHRINE L. WALTERS
  • Cathrine L. Walters
  • Fred Van Valkenburg at his University District home. The county attorney served nearly 20 years in the state legislature before being elected to four terms in his current position.

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.

click to enlarge Van Valkenburg likes to think of the prosecutor as the good guy—or woman, as is the case with roughly half of his 17 deputies. “Everything pivots around what the prosecutor does,” he says. - CATHERINE L. WALTERS
  • Catherine L. Walters
  • Van Valkenburg likes to think of the prosecutor as the good guy—or woman, as is the case with roughly half of his 17 deputies. “Everything pivots around what the prosecutor does,” he 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."

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