Markus Kaarma’s recent appeal was denied by the Montana Supreme Court. It is undeniable that a young valuable life was lost. However, was Markus Kaarma’s trial fair and did the Montana Supreme Court fairly adjudicate his appeal?
First we need to look at two judges responsible for decisions in this case. Retired (thankfully) District Court Judge Ed McLean and Supreme Court Justice Mike McGrath. I had the opportunity to talk with Ed McLean at a fundraiser for his run for Supreme Court Justice in 2004. I specifically asked him about the Montana Crime Lab and the recent scandal involving Arnold Melnikoff. Melnikoff is the disgraced examiner that was responsible for the false convictions of at least three men in Montana. His false testimony led to the destruction of at least three innocent men’s lives and the possibility of others languishing in prison with false convictions. Judge McLean said he could find no fault with the crime lab or the false convictions of these men. What an honorable stance to take faced with the destruction of human life.
In 2004 three retired state Supreme Court justices filed a petition demanding an independent investigation of more than 200 cases handled by Melnikoff accusing Mike McGrath of abandoning justice. The petition contends that not only was McGrath’s investigation of the cases inadequate, but that an examination by the lawyers of cases handled by other lab analysts “suggests a cultural pattern” of making “grandiose but inaccurate or false statements” inflating “their testimony in ways that favored the prosecution.” Mike McGrath stated “I feel very comfortable about the work that we did,” even though at least three men were falsely convicted and imprisoned. These are two of the Honorable Judges presiding in the Kaarma trial.
300 Juror questionnaires were sent out in Missoula County. 89 percent of jurors answered they had heard about the case. 56 percent had already formed an opinion. 42 percent would find it difficult to be impartial. 26 percent would be unable to render a fair verdict. Yet Kaarma’s request for change of venue was denied and upheld by the Supreme Court.
Kaarma’s right to control his defense, violating his 6th amendment right, was taken from him when Judge McLean gave jury instructions on both the use of force for an occupied building and use of force for a person. Kaarma was relying on use of force for an occupied building, not use of force for a person. The jury found him guilty because he did not provide a defense for use of force for a person. His defense was use of force for an occupied building. Justice McGrath concluded McLean did not abuse his discretion in jury instruction. This from a Justice that feels very comfortable with the work done in convicting at least three innocent men and destroying their lives.
M.R. Evid 701 and 702 concern the testimony of a lay person versus the testimony of an expert. Witnesses, prior to trial, must be listed as lay witness or expert witness. 701 and 702 are vastly different when it comes to what the witness may say. The Supreme Court concluded Detective Guy Baker’s testimony was NOT appropriate under 701. If lay testimony crosses to expert testimony it must be recognized by the court or an ERROR occurs and the conviction MUST BE REVERSED.
Supreme Court Justice Mike McGrath concluded that District Court Judge Ed McLean abused his discretion in an error that should have reversed the conviction. However…says Judge McGrath to Judge McLean, it was harmless.
It was harmless says Justice McGrath, (we are proud of our work convicting innocent men) to Judge McLean (I can’t find fault with convicting innocent men).
Yes, a valuable young life was lost but this is not cause for injustice to continue. What happens to one happens to all. Injustice to one is injustice to all.