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Missoula County Prosecutor Kirsten Pabst's Statement On Jon Krakauer's Book

Eric Whitney

The following is a statement by Kirsten Pabst, Missoula County Attorney: 

Tuesday, a book was released about Missoula, addressing the very heartbreaking issue and challenges surrounding acquaintance rape, an important topic that affects so many of us. UM President Engstrom said, "We have strong relationships with officials, the business community and groups across our valley, as he said “when our community faces challenges, we work together to find answers.”

Our small community has been in the national spotlight for two related but different things. First, the issues raised by the book but, more importantly our great work towards improving our collective response to sexual assault. Sexual assault is devastating to victims and to our overall sense of wellbeing.

I represent Missoula County, as your attorney and as your legal advisor. I am very proud of our work, our commitment to the work ahead of us and all of you; those of you who have stood by me; the victims whose sad, difficult stories have, over the years, become part of my own. Our committed law enforcement officers who know we are in this together, for our community and for our own families. But, I am even more proud of those who have bravely spoken up and asked the world to take a closer look.

It is not easy to hear this kind of criticism, and this is difficult to speak about. But I think it makes us better, regardless of whether criticisms are accurate, there is always a lesson in there. And each lesson gained, creates a ripple. Missoula and Missoula’s sexual assault challenge is, unfortunately, typical all across our country. But Missoula is the one who has stepped up and said to the whole world: We listened, we changed, and we are starting to make ripples, the beginnings of a current. Sexual assault is an extremely important issue. Its challenges are historical and complex. The solutions are equally complex.

Explaining the incalculable trauma sexual crimes cause victims is valuable for our community. Oversimplifying the many factors properly considered in deciding if a person should be formally charged with committing a sexual crime is disingenuous, destructive and, in the end, harmful to victims. It is not enough to cast blame. To start to solve this challenge together, we need to begin by understanding the facts.
A widely held misunderstanding is that sexual assaults were not being prosecuted in Missoula; Missoula was unfairly referred to as the “Rape Capital”. The actual numbers show that our offense rates are typical and our prosecution rate has been much higher than the national average.

To be clear, our agreement with the Attorney General’s Office and Department of Justice is not about prosecution rates. Our challenge has been to improve delivery of services to victims by enhancing communication and increasing understanding of the trauma associated with sexual assault and improving the criminal justice process.

Many people commonly misunderstand the role of the prosecutor in the criminal justice system. Many believe that our job is simply to convict and punish. Under the United States and Montana Constitutions and Rules of Professional Responsibility our job is to seek the truth and obtain justice, not blindly seek convictions.

In 1935, the United States Supreme Court explained by objectivity is of paramount importance.

“The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S. 78, 88 (1935).

There is a general misunderstanding many hold of our role as prosecutors. One can care deeply about victims and at the same time make a legal determination that is not popular, such as lack of probable cause. The author wrote on the assumption that a prosecutor’s job is to blindly seek convictions. In reality, our job is to seek truth and do justice, which requires a balanced, open and communicative approach. Sometimes justice means declining a case lacking facts to establish an offense. Sometimes is means focusing every available resource to convict a dangerous predator. We do things based on facts, based on evidence and when making legal decisions, we must put emotion aside.

United States Supreme Court Justice Sonia Sotomayor, said "It's not the heart that compels conclusions in cases, it's the law. My judicial philosophy is fidelity to the law. I have faith in the process of the law, and if it is carried out fairly, I can live with the results, whatever they may be."

A recent article in the Washington Post provided a timely reminder that, to uphold our constitutional obligations, sometimes we have to be the bearers of unwelcome news. Justice Sotomayor summed it up with, "We apply law to facts. We don't apply feelings to facts."

In our search for the truth and goal of obtaining justice, we rely on evidence. I continue to go back to our reliance on facts and evidence. These cases are, by definition, emotionally driven. Objectivity requires looking at all of the facts; talking to all with knowledge; insisting on complete information. Opposing views are welcome in our casework and in our self-evaluation. We do not have the luxury of being obsessed, zealous, or agenda driven.

Prosecutors in Missoula and everywhere have no crystal ball to determine exactly what happened when a sexual assault, or any other crime for that matter, is reported. No human process, however evolved, is flawless. I can only guarantee this: 100 percent of the time victims and witnesses will be heard and treated with compassion and respect; 100 percent of the time the law will be applied to the facts of the case; and 100% of the time defendants who can be convicted at trial will either plead guilty or be taken to trial.

When I ran for county attorney, I promised to be even-handed, fair, and committed to providing better services to our community. You elected me because you wanted someone who bases charging decisions on facts which can be proven in court and you’ve watched me do just that.

A few years ago, I was fortunate enough to meet “Cassie,” a victim of domestic and sexual violence. Cassis is a pseudonym, because she still lives in hiding from her abuser, despite the fact that he lives behind the walls of the Montana State Prison. Since her case, Cassie and I have stayed in touch, like many of the victims I have worked with over the years. They get inside of your heart. I’ve seen this heart thing in every prosecutor in my office and in many of the dedicated law enforcement we work with.

I was thinking about Cassie a few months ago and heard a phrase that reminded me of her: the opposite of despair and oppression is not happiness, the opposite of despair and oppression is resilience. It reminded me of Cassie because of her struggle to regain her life and her incredible strength. Cassie has a life, she is married, has a child and a successful business, but still sometimes struggles to feel happy. I occasionally get to remind her she is the strongest woman I know. So I made a piece of art for Cassie called 'RESILIANCE'. Even when she’s not happy, she is whole. She is resilient. She wanted to be here today.

With the book comes the examination of a handful of cases from the past. Were there things that we missed? Yes. I regret that. I regret that there were deficiencies in communication and that we could have been more mindful of the trauma associated with this type of activity. As a direct result of that introspection, we now have procedures in place to ensure timely communication and the availability of resources. We have improved by making our work more victim-centered and less process oriented. I’ll tell you more about that in a minute.

In all of the hubbub, the importance of our new program and efforts at improving sexual assault prosecutions has been in the shadow. Now is not the time to refute the many factual errors in the book. While the charges the author has made against me, the Missoula County Attorney’s Office and my predecessor, are inaccurate, exaggerated and unnecessarily personal, he is correct in that our investigation and prosecution standards needed to be improved. That has been done. Ask the Montana Attorney General’s Office. Ask the US Department of Justice. Today is the day to celebrate our new direction.

In essence, we’ve taken a look at everything we do as an office and re-written it in accord with best-practices. Our whole approach has shifted from being process centered to victim centered. Our community has banded together, rolled up our sleeves and is breaking ground on great and permanent changes in the area of sexual assault prosecutions. The Missoula County Attorney’s Office is committed to taking the lead and becoming the flagship model for other communities facing similar challenges. To do that, we are examining past practices, studying the nation’s best practices and engaging in specialized training.

One of the first changes we made was creating a Special Victims Unit [SVU] within our criminal division. Until recently, only one prosecutor was dedicated to handling these cases. Now I have a specialized unit, made up of four full time prosecutors, (plus a supervisor and a Victim Witness Coordinator). Prosecutors on this team have been receiving specialized training and have smaller caseloads so that they can devote the time necessary to successfully prosecute challenging cases.

Additionally, we have hired a full-time Victim Witness Coordinator, who works with victims, advocates, and law enforcement, to make sure that victims are treated with dignity and that we improve how we provide services to victims of crime. We’ve also given the Crime Victim Advocate Office access to our electronic files and tracking to improve inter-agency case management and information sharing with victims.

Training is a new priority for my office. I've appointed a Training Coordinator to ensure that all attorneys receive quality educational opportunities in their respective areas of focus. As a result, all of our SVU prosecutors have been engaged in top-notch, on-going training at the state and national levels, geared specifically to prosecuting sexual assault cases.

We are working closely with the Montana Attorney General’s Office in an effort to become the flagship model for prosecuting cases of sexual assault. We regularly meet and look at cases, statistics, and timelines, with an eye toward identifying gaps or areas needing improvement.

We have welcomed Anne Munch, renowned sexual assault consultant out of Colorado, into our office to coach us on best practices in prosecution. In fact, next month she is scheduled to spend 3 days with our team for a hands-on workshop to go through some cases, look at the efficacy of our new processes and offer trial strategies to help increase convictions.

We’ve created a new ‘softer’ conference room and dedicated it as a victim trial preparation area, as an effort to make interviews with defense counsel less intimidating. We are working with the University of Montana to finalize a victims' survey so that we can listen to feedback from the people we are serving and use that feedback in constructive ways.

Every week the SVU meets with the Missoula Police Department SVU and our other law enforcement partners to communicate about specific cases and improve processes that affect victims overall. Additionally, criminal prosecutors have opened up their daily briefings to law enforcement from all agencies. I’ve also appointed a Law Enforcement Training Liaison, Assistant Chief Jennifer Clark, to work closely with our law enforcement partners to offer quarterly legal updates and to share best practices for investigating sexual assault.

Our attorneys are regularly going out into this community--the University, schools, civic groups and special events-- to help demystify the criminal justice process, educate the public about the dynamics of sexual assault, and engage in prevention efforts.

Our Assistant Chief Deputy, Suzy Boylan, with the Attorney General’s office, wrote a 300+ page Sexual Assault Policy and Procedure manual, which is beginning to be used as a teaching tool throughout Montana. It is available on our website and the AG’s website. We have a fund earmarked for expert witness testimony for trials related to sexual assault.We are seeking constructive criticism. We have made significant improvements, but are committed to always striving to be better.

Robert Kennedy said from a podium in Capetown, South Africa, “There is nothing more difficult than to take the lead in the introduction of a new order of things. People hold the belief that there is nothing one man or woman can do against the enormous array of the world’s ills—against misery, against ignorance, or injustice and violence. Yet many of the world’s great movements have flowed from the work of a single man. Each time a man stands up for an ideal, or acts to improve the lots of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers, those ripples build a current which can sweep down the mightiest walls of oppression and resistance.”

This book is timely. I appreciate that the author has chosen to be obsessed with sexual assault, obsessed with Missoula, because it is time to make things better here, throughout the Treasure State and all around the United States. Every ripple helps. Missoula might be a little town, comparatively speaking, but we are bigger than this. We are not all the way there yet. We are not perfect. But, like Cassie, we are not broken either. We are whole. We are resilient.

Missoula is an independent, self-thinking town, very capable of making our own decisions and well-equipped to saying, “We will do better.” I want to be part of that progress, to be a ripple. I think you all want to be part of the progress, the ripples that make up the current and, eventually a tidal wave, because we love Missoula but, more importantly because it is the right thing to do. And we’ll be better for it. Better for looking back, looking in and looking forward.

- County Attorney Kirsten Pabst

Eric Whitney is NPR's Mountain West/Great Plains Bureau Chief, and was the former news director for Montana Public Radio.
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