by Jon Krakauer
The judges weren’t swayed by any of Datsopoulos’s arguments, and they upheld the sentence imposed by Judge Townsend: thirty years in the Montana State Prison, with twenty years suspended. Donaldson would be eligible for parole in July 2015.
It’s both instructive and disturbing to think about how Huguet’s case might have turned out differently if Detective Guy Baker hadn’t obtained a confession from Donaldson. Without a recorded admission of guilt, Chief Deputy Missoula County Attorney Kirsten Pabst might have determined that there was insufficient probable cause to charge Donaldson with rape and declined to prosecute him—just as she declined to prosecute Calvin Smith for raping Kaitlynn Kelly, and as Fred Van Valkenburg himself had declined to prosecute the football players accused of raping Kelsey Belnap.
And even if Beau Donaldson had been charged, it would have been a much more challenging case to prosecute without a confession. Milt Datsopoulos might have refused to accept a plea deal, sending the case to trial. Whereupon Donaldson would have testified that the sex was consensual, and Datsopoulos would have elicited testimony from Donaldson’s friends corroborating this claim. At which point Datsopoulos would have launched a ferocious attack on Huguet’s character. It’s not hard to imagine a jury being persuaded that there was reasonable doubt about whether Huguet had consented to have sex that night. In that eventuality, Donaldson would have been found not guilty, just as Jordan Johnson was found not guilty; and Donaldson would now be a free man, unrehabilitated and unregistered as a sex offender, able to rape again.
Huguet received plenty of reminders that many people continued to believe that she’d falsely accused Donaldson of rape and that he was innocent—even people she had thought were her friends. Two days after Donaldson’s sentence review hearing, one such person, a young woman who had grown up with Donaldson and Huguet in Missoula’s Target Range neighborhood, posted a hateful message to Huguet on Facebook:
Do you not understand you are messing with someone else’s life, not just for a short moment, but for the rest of their lives….Suck it up and own up to your own damn mistakes, act your age! We are not in middle school any more where things are brushed off, this is real life. Karma is a nasty bitch and I cannot wait until she comes back to bite you in the ass.
CHAPTER THIRTY
Back in May 2012, when the U.S. Department of Justice had announced that it was investigating the Missoula County Attorney’s Office, the Missoula Police Department, and the University of Montana for their unsatisfactory response to sexual-assault complaints over the previous three years, the police and the university agreed to cooperate fully with the investigations. Missoula County Attorney Fred Van Valkenburg, however, declared that the MCAO would not cooperate with the DOJ, and he defiantly refused to give federal investigators access to prosecutors in his office or their case files.
A year later, shortly after the Jordan Johnson trial, the DOJ completed its investigations of the Missoula police and the University of Montana and announced that it had reached formal agreements with both institutions to overhaul the way they handled sexual-assault cases. The DOJ reported that its agreement with UM was “a blueprint that can serve as a model for campuses across the nation,” and some months thereafter, an independent auditor reported that the Missoula Police Department was making “steady progress” in complying with the changes decreed by the DOJ, as well.
Fred Van Valkenburg, meanwhile, remained adamant in his refusal to work in concert with the DOJ, claiming it had no legal authority to investigate the MCAO. Permitting the feds to interview Missoula prosecutors and examine their case files would set a dangerous precedent, he claimed, which would allow “the heavy hand of government” to meddle in the affairs of thousands of district attorneys nationwide.
In an attempt to persuade Van Valkenburg to abandon his obstinacy and start cooperating with the Justice Department, in December 2013, Michael Cotter, U.S. attorney for the District of Montana, sent Van Valkenburg a proposed agreement between the DOJ and the MCAO that would improve “the safety and security” of sexual-assault victims in Missoula. It would compel the MCAO to hire in-house investigators (instead of relying solely on the police department to investigate sexual-assault cases); hire in-house victim advocates; and establish a designated sexual-assault unit. It would also oblige MCAO prosecutors to meet face-to-face with every victim who reported a sexual assault, and it would require supervisors to review every case declined for prosecution to ensure that the decision hadn’t been “inappropriately influenced” by a failure to understand “the dynamics of non-stranger sexual assault.”
Michael Cotter’s effort to end the DOJ’s twenty-month standoff with the MCAO had the opposite of its intended effect, however. Van Valkenburg interpreted Cotter’s proposal as a thinly veiled threat to sue the MCAO if Van Valkenburg didn’t agree to the DOJ’s demands, and Van Valkenburg took umbrage. He responded by essentially telling the DOJ to kiss his ass.
Fred Van Valkenburg asked the Missoula Board of County Commissioners for $50,000 to fund a lawsuit challenging the DOJ’s right to tell his office what to do. In making his pitch to the commissioners, Van Valkenburg argued that by suing the DOJ, he could make an important statement about barring the federal government from intruding into local legal matters, while simultaneously saving Missoula taxpayers as much as $400,000 over two years—his estimate of how much it would cost the county to pay the salaries of the new personnel the MCAO would be forced to hire if it acquiesced to the DOJ’s demands.
On January 9, 2014, after the commissioners pledged to fund a lawsuit, Van Valkenburg sent U.S. Attorney Michael Cotter a six-page letter reiterating his refusal to comply with the dictates of the Department of Justice—which, he said, would force the Missoula County Attorney’s Office to “unnecessarily spend hundreds of thousands of tax payer dollars to do what it already does.” Instead, Van Valkenburg offered an alternative proposal: If the DOJ would get off his back, the MCAO would make a commitment “to assist” the Missoula Police Department and the University of Montana Office of Public Safety as they fulfilled their respective agreements with the DOJ.
Fred Van Valkenburg was happy to help city and university cops submit to the lash of the DOJ, in other words, but it would be a cold day in hell before the Missoula County Attorney’s Office would let itself be tyrannized by the federal government. Furthermore, Van Valkenburg threatened, if the DOJ failed to “affirmatively indicate in the next two weeks” that it was willing to accept his alternative proposal, he was “prepared to take any action necessary” to prevent the DOJ from imposing its will on his office.
Given Van Valkenburg’s famously stubborn disposition, few Missoulians were surprised by his desire to kick sand in the face of the DOJ, but some prominent citizens thought suing the federal government was a horrible idea. On January 15, 2014, the Missoulian published an open letter to the county commissioners from a respected clinical psychologist, Frances Marks Buck, who’d provided therapy to numerous local crime victims. Under the headline “Van Valkenburg’s Ego-Based Fight Affects Community’s Well-Being,” Buck wrote,
In Montana, unlike some states, the state attorney general has no jurisdiction or oversight of county district attorneys. The only “oversight” is the electorate….
There are clear problems in the functioning of the Missoula District Attorney office, both with the district attorney himself and a number of assistant district attorneys.
In my opinion, Fred Van Valkenburg’s stance of noncooperation with the DOJ is ego-based, not principle-based….He has focused on the “right” of the DOJ to investigate, not how he, his assistant district attorneys, and the community could benefit from the recommended changes.
Van Valkenburg was unmoved by Buck’s letter. On February 11, when the feds hadn’t budged from their position, Van Valkenburg filed a lawsuit against the Department of Justice, U.S. Attorney General Eric Holder, and U.S. Attorney Michael Cotter, seeking “a judgment declaring that the defendants do not have the authorit
y to investigate or sue the Missoula County Attorney or his office.” Van Valkenburg based his legal claim on the federal common-law doctrine of “absolute prosecutorial immunity,” which serves “the same purpose that underlies the immunity of judges and grand jurors,” namely, “to protect the judicial process.”
The DOJ responded to the lawsuit seventy-two hours later, on Valentine’s Day, by releasing a twenty-page report, personally addressed to Fred Van Valkenburg, that documented the failings of the Missoula County Attorney’s Office in blistering detail, based on a far-reaching investigation that included interviews with former MCAO prosecutor Kirsten Pabst, former Missoula police chief Mark Muir, nine Missoula detectives and police officers, and more than thirty female victims of sexual assault. When the DOJ had announced its investigation in May 2012, it had noted that at least eighty alleged rapes had been reported in Missoula over the preceding three years. But the findings sent to Van Valkenburg in February 2014 revealed that there were actually 350 sexual assaults reported to the Missoula police between January 2008 and May 2012, a span of fifty-two months. As part of its investigation, the DOJ asked an eminent supervisor of a police sexual-assault unit and an eminent sex-crimes prosecutor to review these cases.
According to the DOJ Valentine’s Day report,
Women consistently told us that Deputy County Attorneys treated them with indifference or disrespect, and frequently made statements to women victims, advocates, and the public diminishing the seriousness of sexual violence and minimizing the culpability of those who commit it. We learned that prosecutors did not communicate with female victims about their cases, did not inform them of the charges to be filed and did not seek their input about the type of relief to seek against the accused if convicted. In many cases, prosecutors failed even to return victims’ phone calls.
Even though Montana law requires prosecutors to consult with victims of all felony and misdemeanor crimes, the DOJ investigation revealed that “the County Attorney’s Office often neglects to hold these consultations with sexual assault victims” and that “the interactions that the County Attorney’s Office does have with victims of sexual assault often leave them feeling offended, disregarded, and disbelieved by prosecutors.” In one instance cited in the report,
a Deputy County Attorney quoted religious passages to a woman who had reported a sexual assault, in a way that the victim interpreted to mean that the Deputy County Attorney was judging her negatively for having made the report. Advocates told us that Deputy County Attorneys “said terrible things to victims,” including saying to one woman, “All you want is revenge.”
One woman described her interaction with a Deputy County Attorney as “traumatic.” Another woman stated that, by the time the prosecution was over, she was so frustrated by the Deputy County Attorney’s treatment and the MCAO’s failure to keep her informed about key developments in the case that she “would never suggest” that another woman pursue a sexual assault prosecution in Missoula. She said further that it “broke her heart” that other women had to go through a similar process to have their cases prosecuted….
[A] young woman who had suffered a gang rape as a student at the University of Montana…described feeling re-traumatized by the experience of seeking to have the assault prosecuted by the County Attorney’s Office. As a result of hearing about that experience, a friend of the woman declined to report her own rape to either the police or prosecutors. In another example, a clinical psychologist told us that she had counseled numerous sexual assault survivors in Missoula who had pursued criminal charges against their assailants and described their experiences with the County Attorney’s Office as being so horrendous that, when the psychologist herself was sexually assaulted, she was reluctant to have her case prosecuted.
The report warned, “Since the majority of sexual assaults are committed by repeat offenders,” the effect of the MCAO’s failure to file charges was compromising “the safety of women in the Missoula community as a whole,” because “perpetrators who escape prosecution remain in the community to reoffend.” In an observation directed specifically at Fred Van Valkenburg, the DOJ report noted,
Public comments you have made further suggest that, at the very least, sexual assault is not a high priority for MCAO….For example, in responding to questions about delays in charging decisions, you reportedly said that your attorneys review charging decisions in sexual assault cases “when they have spare time.” While you subsequently attempted to explain that by “spare time” you were referring to the “additional time” after other courtroom and litigation functions have been completed, the statement seems inconsistent with the diligent investigation and prosecution of sexual abuse….
Of equal concern, we found that the County Attorney’s Office declined to prosecute nearly every case of non-stranger assault involving an adult woman victim who was, at the time of the assault, subject to some type of heightened vulnerability—for example, in cases where the assault was facilitated by drugs or alcohol,…even when the assailant had confessed or made incriminating statements….
For instance, a woman reported that she had been drugged and raped by an acquaintance the previous day. Missoula Police officers developed evidence that included video footage of the alleged assailant slipping something into the woman’s drink. The Missoula Police also obtained admissions by the assailant that although he did not remember putting something in the woman’s drink, it was possible he had and, as he stated, “If I were trying to make her relax it would be Xanax.” When confronted with the video footage, the assailant also stated, “My memory tells me no, but I can’t argue with surveillance.” The Missoula Police obtained a search warrant for the suspect’s home and learned that the suspect had recently refilled prescriptions for two drugs common in drug-facilitated sexual assaults, including Xanax. Nonetheless, MCAO declined to charge the case, citing insufficient evidence, but with no documented further explanation. Moreover we found no indication that the County Attorney’s Office had given any guidance to Missoula Police detectives about how to develop evidence that it believed would be sufficient to support bringing charges in this case.
—
ON FEBRUARY 21, 2014, one week after the DOJ’s damning report was released, Van Valkenburg responded with a five-page broadside that vehemently denied the DOJ’s allegations. His reaction to the report was “frustration, disbelief and outrage,” he wrote:
It is no coincidence that the DOJ released this letter to the press only after I filed a federal court action seeking clarification of the DOJ’s authority. The letter provided to the press is clearly retaliatory. The DOJ is trying to use the media to improperly influence public opinion about the issue of sexual assault cases.
This is a politically-calculated and irresponsible move on their part….
There are 11 attorneys within the criminal division of the County Attorney’s Office, 7 of whom are women. Each attorney is personally responsible for upwards of 125 criminal cases at any given time. It is safe to say the workload for our attorneys is high, especially in light of limited time and resources. Despite these obstacles, all criminal victims are given priority whether women, children or men. It is a flat out lie for the DOJ to claim sexual assault cases are given the lowest priority.
Plenty of Missoulians applauded their embattled county attorney for standing up to the DOJ. One of these admirers was former Missoula police chief Mark Muir, who’d retired two months earlier. In a guest column published in the Missoulian, Muir referred to the DOJ as “Attorney General Eric Holder’s team of ultra-liberal, Washington, D.C., legal staff” and contended that Fred Van Valkenburg had “courageously chosen a bold and wise strategy in suing the United States Department of Justice for its abuse of power.”
Support for Van Valkenburg’s lawsuit was far from universal, however. On the same day that Van Valkenburg released his angry response to the DOJ report, the Missoulian published an article written by Mike Brady, the city’s new police chief, and John Engen,
who’d been mayor since 2005; they made a convincing argument that the DOJ’s investigation of the Missoula Police Department, and the resulting agreement between the city and the DOJ to change the way rape investigations were handled, had made Missoula a safer place for women. “It’s close to a year since the city of Missoula entered into an agreement with the United States Department of Justice Civil Rights Division,” Brady and Engen wrote, “and we’re the better for it.” They pointed out that police officers were now better trained to handle the unique challenges of acquaintance rape, making them more sensitive to the needs of rape victims, and that the department had adopted better policies and procedures that vastly improved police cooperation with the county attorney’s office and victim advocates. The police department had also commissioned an external review of its performance “to ensure that we’re always improving and that we’re accountable to the citizens we serve.”
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.
CHAPTER THIRTY-ONE
Fred 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.”
