Montana Law and Justice – Second Year On A Judicial Hellhole Watch List

In the last several years 14 falsely convicted people have been exonerated in Montana for crimes ranging from child sexual assault to murder. Each false conviction was obtained by teams of investigators, prosecutors and judges. These trained teams are from a combination of city, county, state and federal investigators and law enforcement. Fighting these trained government teams is a single defendant and his or her attorney. The defendant is paying for his or her own defense or is given a public defender. Either way the defendant cannot match the dollars spent by these trained government employees to obtain false convictions.

Richard Burkhart recently filed a lawsuit in Cascade County for one such false conviction for murder, CDV-18-0565.  Burkhart's conviction was based on a coerced "confession" by co-defendant Michael Staley.  Michael Staley's pregnant girlfriend was charged with Felony Obstruction of Justice in the matter and was then paraded in handcuffs in front of Staley while Staley was in the county jail.  Staley, fearing that his child would be born in prison, was coerced into "confessing" that Burkhart was the killer in exchange for dropping charges against Staley's girlfriend and Staley had only to plead guilty to an obstruction of justice charge and received a light sentence.  Mr. Burkhart was found guilty September 19, 2002, in large part because of a "confession" that a team of highly trained investigators knew to be coerced.  September 26, 2002, this highly trained team received exculpatory information that Burkhart was innocent but did not turn the information over to Burkhart's attorney.  Due to the actions of this highly trained team of investigators, Richard Burkhart spent 16 years of his life  incarcerated in the Montana State Prison.  Officer Jamie Pinski and Great Falls Police Detective Tim Thiesen are directly responsible for this egregious false conviction.

Chief Justice Mike McGrath said his proudest moment was the convictions of Freddie Lawrence and Paul Jenkins, both false convictions and the men were exonerated after spending a combined 46 years incarcerated in the Montana State Prison. Detective and Sheriff, Sam McCormack said his most memorable moment was the convictions of Freddie Lawrence and Paul Jenkins, both false convictions. His side-kick, State Investigator Reed Scott, aided him in obtaining these false convictions.

The combined sentences for the 14 people falsely convicted and later exonerated was 348 years and 2 life sentences. There are many more false convictions waiting to be exonerated. These false convictions were obtained by highly trained investigators, prosecutors and judges.

Montana is designated on a judicial watch list known as the Judicial Hellhole Watch List. This designation is, in part, due to Montana Judges refusing to act as gatekeepers for junk science and junk experts being offered to jurors in their courtrooms. Judge Thomas Honzel and Prosecutor turned Judge, Robert L. “Dusty” Deschamps are examples of judges refusing to act as gatekeepers.

These highly trained investigators, prosecutors and judges then go into retirement leaving behind falsely convicted defendants to live in poverty, fear and destroyed lives. These investigators, prosecutors and judges live on their public retirements having obtained these retirements at the expense of the people they victimized. Indeed, the falsely convicted have been victimized to propel the careers of these highly trained teams and generate campaign dollars for future political aspirations.

Montana still wants the death penalty.

Reform Law Enforcement and Prosecutors to Reduce Prison Overcrowding

To address the challenges of prison overcrowding, Chief Justice Mike McGrath, Attorney General Tim Fox (Montana's top cop), Montana Department of Corrections Director Mike Batista and others requested technical assistance from the Council of State Government Justice Center to use some abstract, collective behavior approach that was developed within a certain social group that will last a finite period of time. In other words, this too will pass. 

If Montana is really interested in reducing the number of criminal convictions we must diligently pursue the tactics used to convict defendants. One such tactic allows investigators to lie to the accused about the evidence against the accused. The concept of the lawful use of deception should not be a Montana value. Do we really want convictions based on lies and deception on the part of law enforcement? 

A person can be charged with a felony for lying to law enforcement yet we consistently allow law enforcement to lie to a defendant and their attorney. The idea that sometimes you have to resort to trickery to get a confession is paramount to saying the state has no case against the accused. If there is no case against the accused we should not be convicting them. You can try to justify this approach however being a good liar should not be a job requirement for law enforcement. Lying is a slippery slope. Where does the lying stop or does it stop? 

The second reform Montana needs is to adopt the current federal standard for Daubert, the standard set forth for expert witness testimony. Federal Rule 702 is as follows: 

RULE 702. TESTIMONY BY EXPERT WITNESSES A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 
(b) The testimony is based on sufficient facts or data; 
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case. 

In Montana Rule 702 reads as follows: 

Rule 702. Testimony by experts.  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. 

Montana does not require expert witnesses to use reliable principles and methods in conducting their examinations which brings us to expert witnesses such as the infamous and beleaguered James Blanco, a handwriting expert from California that purports to do work for the Montana Department of Justice on his curriculum vitae. In a deposition in a case, Blanco stated that one could hire an expert to "testify to the exact contrary" to another expert, because one "can pretty much get experts to say anything." See Southwell Decl. Ex. G. In yet another deposition, Blanco stated his findings would be different if he was working for the opposing side. See Edens vs Kennedy. The American Board of Forensic Document Examiners, the Southwest Association of Forensic Documents Examiners and the American Academy of Forensic Sciences determined that James Blanco had diminished confidence in forensic scientists and their disciplines. He is no longer allowed membership in their organizations, yet Montana allows his testimony because Montana does not require experts to use reliable methods. In other words, in Montana an expert can make any finding as requested by the Montana Department of Justice whether or not the finding is reliable. Whatever finding the Montana Department of Justice wants, Blanco will give it to them as will other experts hired by the Department of Justice. 

Chief Justice (former prosecutor for Lewis and Clark County and former Montana Attorney General) Mike McGrath knows this. Mike McGrath has hired James Blanco. Attorney General Tim Fox, Montana's top cop, knows Montana courts do not require reliable expert testimony. Montana Department of Corrections (former head of Montana Department of Justice Criminal Investigations) Mike Batista knows Montana does not require reliable expert witness testimony. Mike Batista has also hired James Blanco. 

I wonder why Mike McGrath, Tim Fox and Mike Batista, with the knowledge they have, don't start reforming laws pertaining to the concept of the lawful use of deception and Rule 702 that allows unreliable expert testimony? Oh wait, I know...they have all used these techniques and at least two of them have hired unreliable expert testimony in the form of James Blanco. 

Montana needs to decide which reform is better: (1) passing a bunch of bills based on some abstract, collective behavior approach that was developed within a certain social group that will last a finite period of time. Or (2) reforming the laws that convict Montana citizens by lies, treachery and subterfuge and hiring unreliable expert testimony.

Contact your legislator when you have made your decision.