Maverick judge to decide fate of sex offenders program

  • Article by: CHRIS SERRES , Star Tribune
  • Updated: January 25, 2014 - 9:12 AM

A maverick federal judge could deliver a surprise verdict in a landmark Minnesota sex offender case next month.

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Judge Donovan Frank

Photo: DAVID JOLES • djoles@startribune.com,

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When former President Bill Clinton appointed Donovan Frank to the federal bench 15 years ago, it was widely assumed that he would be a different kind of jurist — someone more connected with the real-world concerns of ordinary people than the Ivy League alums who populate the nation’s highest courts.

Frank is the son of a small-town shopkeeper, a recovering alcoholic who spoke publicly about his early battles with addiction, and a tireless advocate for people with disabilities. To this day, his computer screen saver flashes a quote often attributed to Gandhi: “Be the change you wish to see in the world.”

But the judge whom many pegged as a bleeding-heart liberal when the late Sen. Paul Wellstone nominated him for the federal bench has surprised legal observers with his no-nonsense application of the law and strict adherence to precedent. He has distinguished himself by meting out tough prison sentences for criminals and for issuing unusually harsh rebukes of anyone who dares violate court orders.

Now, this former prosecutor — who tried and won a landmark case against a child molester — is about to determine the fates of hundreds of civilly committed rapists, pedophiles and other violent sex offenders across Minnesota, in a case being closely watched by criminal justice advocates nationwide.

A class consisting of hundreds of sex offenders has accused the state of Minnesota of violating their constitutional rights by locking them away indefinitely at high-security treatment centers in Moose Lake and St. Peter after they have already served their prison sentences. Some of the 700 detained offenders have come to refer to the centers as “Minnesota’s Guantanamo” because almost no one is ever released.

Frank, who declined to discuss the case, has promised to rule on the constitutionality of the program by Feb. 16.

In hearings, the judge has been openly skeptical of Minnesota’s civil commitment process, and some lawmakers are worried that he may take a radical step and order the shutdown of the 19-year-old Minnesota Sex Offender Program, or MSOP, prompting the sudden release of hundreds of convicted rapists and child molesters.

But those familiar with Frank’s history of apolitical judicial restraint, and his tough-but-fair approach to dealing with criminals, suggest he may stop short of the radical revamping of the MSOP sought by some civil liberties advocates. Frank has been tougher on convicted criminals than his colleagues on the federal bench during the past five years as a federal judge, according to court data.

“Anyone who thinks that [Frank] is going to go easy on someone just because of who appointed him is absolutely nuts,” said Joseph Friedberg, a Minneapolis defense lawyer. “[Frank] is a right-down-the-middle-of-the road judge who never lets his personal politics get in the way.”

Reputation set early

Frank grew up in the southeastern Minnesota town of Spring Valley, where his father ran a small television and appliance store. As a kid, Frank spent his summers working at the family farm of his father’s oldest brother, Clayton Frank, where he would help with jobs ranging from milking cows to baling hay. At age 62, Frank still speaks in an unreconstructed Minnesota accent.

After graduating from Hamline University School of Law in 1977, Frank quickly established a reputation as a hard-nosed prosecuting attorney on the Iron Range. At age 31, he argued the first child sexual abuse case in state history that allowed for expert psychological testimony.

In 1982, a 7-year-old girl claimed that a man living in her mother’s house had repeatedly come into her bedroom at night and molested her. When the girl’s honesty was questioned, Frank reached out to Dr. Claire Bell, a clinical psychologist in Duluth who had treated the child.

At the trial, Bell testified that the girl had certain traits — including nightmares and fear of men — that were consistent with those of sexually abused children. Bell’s testimony was a turning point in the trial and the defendant, James Alan Myers, was sentenced to 35 months in prison. “In Donovan, we had a very courageous prosecutor who dared to march in where others feared to tread,” Bell said.

Friedberg recalls facing off against Frank in a trial involving a shootout with police at an Ely drugstore. The defendant claimed in court that his partner was the shooter and that he didn’t know he had the gun. Frank waited until the final days of the trial before disclosing that the man had made a similar claim in a robbery case a decade earlier.

“Needless to say, that left us with our faces hanging out,” Friedberg said. “It killed our case.”

In 1985, Frank was appointed to the state District Court bench in Virginia, Minn., where he became more public in his insistence that people with developmental disabilities be given equal access to the court system.

Tough and impartial

He quickly gained a reputation for toughness and impartiality as a judge.

In the late 1980s, Frank was a member of a statewide task force on the prevention of sexual violence against women, which met following a string of rapes and murders of women in downtown Minneapolis. The task force called for increased prison sentences and expanded treatment for rapists and other sex offenders.

In early 1993, Frank learned that a retired state judge had just used the term “Martin Luther Coon” twice during the week leading up to the holiday honoring slain civil rights leader the Rev. Martin Luther King Jr. That day, Frank drove to the local courthouse where the slurs occurred and ordered the retired judge to clean out his desk and leave immediately.

While Frank was originally pigeonholed as a liberal, his rulings as a federal judge have been anything but lenient. He has sentenced 253 defendants to prison during the past five years, imposing an average sentence of 67 months — longer than his peers on the federal bench in Minnesota and 40 percent longer than the average prison sentence for the nation.

In 2005, the judge surprised some observers when he sentenced the infamous “SpongeBob Bandit” to 37 years in prison for a string of local bank robberies. The robber, Clyde Scott Thompson, earned the nickname because he stuck his loot in a bag decorated with the cartoon character SpongeBob SquarePants.

And while Frank has gone public with his struggles with addiction — he proudly displayed his Alcoholics Anonymous medallion during a recent speech in Virginia — the judge is notoriously tough on drug offenders. He has a “zero tolerance” policy for offenders who violate their court-ordered treatment, requiring them to appear before him within 36 hours after testing positive for drugs.

“I firmly believe that when Judge Frank was robed, he left his political leanings at the door,” said Minneapolis attorney Robert Weinstine.

Frank can also be unusually personable for a federal judge, occasionally coming down from the bench to talk and shake hands with defendants.

In 2005, during a particularly tense moment in the lengthy trial of a teenager who went on a shooting spree on the Red Lake Indian Reservation, Frank called the attorneys into his chambers and had them watch an inspiring online video of an autistic boy, nicknamed “J Mac,” who made a series of three-point shots in the final moments of a high school basketball game.

“He has this way about him, where even a defendant who has been given a harsh sentence will walk out of his courtroom and think, `I have been heard fully and dealt with fairly,’ ” said Sharon Chadwick, an assistant St. Louis County attorney.

Ruling coming soon

Attorneys involved in the MSOP case have been wary of predicting how Frank will rule. At a December court hearing, Frank appeared concerned that civil commitment had become a backdoor form of punishment in cases where the criminal justice system had failed to fully prosecute violent sex offenders.

“There’s all these plea bargains going on, and a lot of great criminal changes that few people are taking advantage of, instead of prosecuting to the maximum,” Frank said in the courtroom.

Eric Janus, dean and president of William Mitchell College of Law, said it is likely by design that Frank scheduled a ruling on the constitutionality of the sex offender program less than two weeks before the Legislature reconvenes in late February.

“What he might do is send a message to lawmakers that, ‘Look, you better take this seriously and fix this,’ ” Janus said. “Because otherwise, you’ll have a federal judge breathing down your neck.”

 

Chris Serres • 612-673-4308

 

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  • Judge Donovan W. Frank

    U.S. district judge, District of Minnesota

    Born: June 24, 1951, Rochester, Minn.

    Education: Graduated from Spring Valley High School, Spring Valley, Minn., 1969; Bachelor’s degree from Luther College in Decorah, Iowa, 1973; Hamline University School of Law, J.D., magna cum laude, 1977.

    Career history: Assistant county attorney, St. Louis County, Minn., 1977-1985; judge, Minnesota District Court, 1985-1998; chief judge, Sixth Judicial District, 1991-1996: Recommended to the federal bench by the late Sen. Paul Wellstone and appointed by former President Bill Clinton in 1998.

    Honors: American Bar Association’s Paul G. Hearne Award for Disability Rights, 2012; Minnesota Trial Judge of the Year, 1996; Luther Granquist Systems Change Award from Arc Minnesota, 2011.

    Family: Wife of 40 years, Kathy (Jacobson) Frank; they have five daughters

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