Montana criminal justice reform

Montana Justice Reinvestment. Millions have been spent and I am angry.

MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY

JOSHUA JAMES HEMMY,		Cause No. BDV-22-357
Plaintiff,
V.		AMENDED COMPLAINT
		FOR DAMAGES AND
		DEMAND FOR JURY TRIAL
CASCADE COUNTY,	Defendant.

COMES NOW, the Plaintiff, Joshua James Hemmy, by and through his attorneys of record, and file this Amended Complaint.

The first filed complaint named individual detention officers in their official capacity as defendants, however, as the claims in this case are against the governmental entity itself Cascade County, this Amended Complaint intends all claims remain in full force and effect against the County. This Amended seeks to correct the record to comply with naming the sub-governmental entity alone, but in no way seeks to limit the rights of Plaintiff or limit Plaintiff’s causes of action for the claims against the remaining defendant sub-governmental entity employer Cascade County Sheriff’s Office or prejudice or limit any liability under the theory of Respondeat Superior or Mont. Code Ann. § 2-9-102, for the actions of the named defendants being removed in this Amended Complaint.

INTRODUCTION

I. Joshua James Hemmy, (“Plaintiff’), files this action in his individual capacity as he was subjected to a violent, visual, physical forced inspection of his body, including his anus, (“strip search and cavity search”), after being cited and booked into the Cascade County Detention Center (“Detention Center”), on misdemeanors for: (I) Criminal Trespass to Property, (2) Obstructing a Peace Officer, and (3) Disorderly Conduct. Such searches were conducted without reasonable suspicion to believe that Plaintiff was concealing a weapon, contraband, or evidence of the commission of a crime. These searches violate § 46-5-105, MCA, which states the following:

A person arrested or detained for a traffic offense or an offense that is not a felony may not be subjected to a strip search or a body cavity search by a peace officer or law enforcement employee unless there is reasonable suspicion to believe that the person is concealing a weapon, contraband, or evidence of the commission of a crime.

Further, the searches directly violated § 46-5-105, MCA, the statute “unequivocally prohibits suspicionless strip searches of those arrested for minor offenses in any situation.”

Rogers v. Lewis and Clark County, 2020 MT 23, 33.

If law enforcement had a reasonable suspicion that a person entering the Detention Center was concealing a weapon, contraband, or evidence of the commission of a crime, such facts would be set forth in police reports generated either by the arresting officer or a deputy at the Detention Center. Upon information and belief, no such police report(s) exist in this matter.

JURISDICTION, VENUE, AND PARTIES

This Court has jurisdiction over this action pursuant to§§ 3-5-302 and 3-5-312, MCA. This Court has personal jurisdiction over Defendants pursuant to Rule 4(B), M.R.Civ.P. and Mont. Const. Art. 11, § 18.
The events that form the basis of this Complaint transpired in Cascade County, Montana.

Venue is proper pursuant to §§ 25-2-125, 25-2-126, and 25-2-117, MCA.

The Plaintiff is and was, at all times pertinent, a citizen of the United States and a resident of the state of Montana.
The Plaintiff was arrested in Cascade County within the applicable statute of limitations and detained at the Detention Center for offenses that were not felonies, was directed to a padded cell, and was subjected to a strip search and cavity search at the Detention Center without reasonable suspicion for the strip search or probable cause for the cavity search.
Defendant Cascade County is a political subdivision of the state of Montana. By statute or custom, Cascade County is responsible for the custody of persons detained by the Cascade County Sheriffs Office and the Great Falls Police Department at the Detention Center for all offenses for which persons are arrested or detained in Cascade County, Montana.
Cascade County Sheriffs Office is the chieflaw enforcement agency in Cascade County, Montana, and is responsible for the custody of persons detained by the Cascade County Sheriffs Office and the Great Falls Police Department at the Detention Center.
Jesse Slaughter is the Cascade County sheriff, who is elected by the residents of Cascade County, and is the chief executive officer of the Cascade County Sheriffs Office. Slaughter commands the staff and oversees all law enforcement operations for the Cascade County

Sheriffs Office, including the Detention Center.

Corey Reeves is the Cascade County undersheriff, who commanded the staff and oversaw law enforcement operations at the Detention Center during portions of the applicable statutes of limitations.
Jason Corscadden, a Detention Center employee, performed the strip search/ cavity search of Plaintiff at the Detention Center.
Gabrielle Heaton, a Detention Center employee, performed the strip search/ cavity search of Plaintiff at the Detention Center.
Tracy Moore, a Detention Center employee, performed the strip search/ cavity search of Plaintiff at the Detention Center.

The Plaintiff does not know the true name of other Detention Center employee(s), who performed the strip search/ cavity search of Plaintiff at the Detention Center.

FACTUAL ALLEGATIONS

On August 1, 2020, Officer Adam Olson (“Olson”), and Officer Tad Kimmet, (“Kimmet”), Great Falls Police Department, were dispatched to Benefis West Campus in regard to a male that was being loud and appeared agitated.
The male, identified as Plaintiff, was eventually arrested and cited for Criminal Trespass to Property, Obstructing a Peace Officer, and Disorderly Conduct, which are all misdemeanor offenses.
Olson transported the Plaintiff to the Detention Center and released him to Detention Center staff.
At the Detention Center, the Plaintiff took a shower and dressed into his regular clothes after completing the shower.

Detention Center employee, Jason Corscadden, (“Corscadden”), then escorted Plaintiff to a padded cell in order to conduct a strip search.
Deputy Riley McDermott, (“McDermott”), Cascade County Sheriffs Office, interviewed

Detention Officer Gabrielle Heaton, (“Heaton”), and Corscadden, who both informed that they were escorting Plaintiff to the padded cell to conduct a strip search. The report indicates that it was going to be a “forced strip search.” McDermott was also informed that Plaintiff was not on drugs but was believed to be mentally unstable.

After entering the padded cell, Detention Officers Corscadden, Moore, Heaton, and John Doe 2 conducted the forced strip search and penetrating body cavity search of Plaintiff.
The Plaintiff refused the search and an altercation ensued.

The strip search and penetrating body cavity search were ordered to be conducted prior to any physical altercation between the Plaintiff and detention center employees.
Plaintiff was subsequently charged with felony Assault of a Peace Officer. The charge
occurred after the strip search and body cavity searches were performed.

All criminal charges against the Plaintiff were eventually dismissed.

There were no booking charges, nor any booking documents for Plaintiff when he entered the detention center. The Plaintiff was never charged (1) Criminal Trespass to Property, (2) Obstructing a Peace Officer, and (3) Disorderly Conduct.

There was no justification, nor need for the strip search to occur, nor any justification, nor need for the penetrating body cavity search to occur. Nor were there any extrinsic circumstances to justify the ordering of the strip search in the first place. Consequently, due to actions and omissions of the Defendant, the Plaintiff has suffered from extreme emotional harms, as well as bodily injury, and as a result, he has had to seek medical treatment.

APPLICABLE LAW TO ALL COUNTS – RESPONDEAT SUPERIOR

All acts and omissions by Detention Center employees related to the allegations set forth in this Complaint are imputed upon all employees of the County under the doctrine of respondeat superior and§ 2-9-102, MCA.

COUNT I – CONSTITUTIONAL VIOLATIONS

Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
Mont. Const. Art. 2, § 10 provides that “the right of individual privacy is essential to the well-being of a free society ad shall not be infringed without the showing of a compelling state interest.”

Mont. Const. Art. 2, § 11 provides in relevant part that “the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures.”

Defendants violated§ 46-5-105, MCA, by subjecting the Plaintiff to an illegal strip search and Mont. Const. Art. 2, § 10, and Mont. Const. Art. 2, § 11 by subjecting Plaintiff to an unwarranted penetrating body cavity search.
The Plaintiff is entitled to monetary damages for violations of his state constitutional rights.

COUNT II – NEGLIGENCE

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
Defendants had a duty to follow the law, and their own policies and procedures in congruence with the law, and owed a duty of care to the Plaintiff while the Plaintiff was in the Detention Center.

Defendants breached their respective duties of care.

As a direct and proximate result of the Defendants’ breaches, the Plaintiff was injured.

COUNT III – NEGLIGENCE PER SE

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
Defendants violated§ 46-5-405, MCA, by subjecting the Plaintiff to an illegal, forced strip search and penetrating body cavity search.

Section 46-5-105, MCA, was enacted to protect persons “arrested or detained for a traffic offense or an offense that is not a felony.”
The Plaintiff is a member of the specific class of persons that § 46-5-105, MCA, was enacted to protect.
Section 46-5-105, MCA, was enacted to protect the Plaintiff from the exact type of harm that he suffered.

Section 46-5-105, MCA, was enacted to regulate members of Defendants’ class, i.e., peace officers or law enforcement employees.
As a direct and proximate result of Defendants’ violations of § 46-5-105, MCA, the Plaintiff was injured.

COUNT IV – NEGLIGENT SUPERVISION

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
The Defendant was aware or should have been aware of the fact that the strip search and penetrating cavity search that was conducted was illegal. The supervisors that permitted the activity to occur were negligent in their duties to supervise, train, its employees and enforce the relevant law at the Detention Center.

Defendant owed a duty to the Plaintiff to exercise reasonable care in hiring, training, and supervising employees on the basis of a special relationship between Defendants and the Plaintiff.
Had Defendants not been negligent in their duties to supervise, train, and enforce the relevant law at the Detention Center, the strip search and penetrating body cavity search would not have occurred.
Consequently, the Plaintiff was injured due to Defendants’ negligent supervision in an amount to be proven at trial.

COUNT V – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
The Plaintiff has suffered serious and severe emotional distress due to Defendants subjecting him to a strip search and cavity search in the Detention Center.
The serious and severe emotional distress was a reasonably foreseeable consequence of Defendants’ intentional acts of subjecting the Plaintiff to a strip search and cavity search in the Detention Center.

COUNT VI – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
The Plaintiff has suffered senous and severe emotional distress due to Defendants subjecting him to the strip search and the cavity search in the Detention Center.
The serious and severe emotional distress was a reasonably foreseeable consequence of Defendants’ negligent acts of subjecting the Plaintiff to the strip search and cavity search in the Detention Center.

COUNT VII – INVASION OF PRIVACY

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
Defendants committed wrongful intrusions, both negligently and intentionally, into the Plaintiffs private activities in such a manner as to outrage or cause mental suffering, shame, anguish, and humiliation to a person of ordinary sensibilities.
The Plaintiff has suffered mental suffering, shame, anguish, and humiliation due to Defendants’ wrongful intrusion into the Plaintiffs private activities and body.

COUNT VIII – ASSAULT

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
The Defendants assaulted the Plaintiff during the strip search and cavity search at the Detention Center.

The Defendants’ actions caused Plaintiff to be apprehensive of harmful and offensive conduct.
The Defendants undertook such actions without lawful justification.

The Defendants’ actions caused injury or apprehension of injury.

COUNT IX- BATTERY

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
The Defendants engaged in the intentional touching and the application of force to the body of the Plaintiff.

The Defendants’ intentional touching and application of force to the body of the Plaintiff was harmful or offensive.
The Defendants’ intentional touching and application of force to the body of the Plaintiff was without the Plaintiffs consent.

COUNT X- FALSE IMPRISONMENT

The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
The Defendants detained the Plaintiff in a padded cell with the express intent of performing a forced strip search.
The Defendants’ detention of the Plaintiff was willful.

The Defendants’ detention of the Plaintiff in the padded cell with the express intent of performing the forced strip search was without the Plaintiff’s consent.
The Defendants’ detention of the Plaintiff in the padded cell with the express intent of performing the forced strip search was unlawful because it was done without the requisite reasonable suspicion necessary to perform such a search in the state of Montana.

JURY TRIAL DEMAND

The Plaintiff does hereby demand a trial by jury on all issues so triable.

REQUEST FOR RELIEF

WHEREFORE, the Plaintiff requests the following relief:

For judgment in favor of the Plaintiff and against Defendants for all damages caused by Defendants’ conduct, including general, special, compensatory, and pre-judgment and post-judgment interest in an amount to be proven at trial.

For attorney’s fees and costs, including those necessitated by this action pursuant to the private attorney general doctrine or any other applicable doctrine of law or equity.
For all other relief that is just and proper.

A mentally ill man is taken into custody for misdemeanor charges. He is taken to the detention center where he is NOT booked in. At least three correctional officers forcibly penetrate his anus causing injuries sufficient for him to seek medical care. There were no booking charges, nor any booking documents. The Plaintiff was never charged with 1) Criminal Trespass to property, 2) Obstructing a Peace Officer and 3) Disorderly Conduct.

Montana is in the middle of a legislative session. Every member of both chambers should be angry. Every citizen in the State of Montana should be angry. Montana has spent millions of dollars pretending to reform criminal justice. The foundation of criminal justice starts at the beginning of the process. If the foundation is bad no structure or organization can withstand. A faulty foundation always leads to the destruction of the structure or organization. You cannot build on a faulty foundation. Yet Montana continues to attempt to build reform on a faulty foundation. We cannot confuse improvement with reform. Yes, we need to improve conditions at our state prisons but that does not constitute reform.

Reform must start at the foundation, not on the second or third floor of the structure. Reform must start with the initial contact and investigators, with the prosecutor and the judge. Law enforcement must be reformed. We must pass laws that law enforcement, investigators and prosecutors cannot lie to the defendant. We have to stop overcharging defendants to make them plead guilty to lessor offenses. Hyperbole by investigators and prosecutors in the court room have to be stopped. Judges have to be held accountable for their “gatekeeping” responsibilities. Any prosecutor that exaggerates to the jury, hyperbolizes evidence and twists statements has to be held in contempt. We must pass sufficient laws to protect the truth in justice. A judge cannot just tell a jury to disregard what they heard. The prosecutor or investigator must be held accountable in front of the jurors. Correctional officers must know the law and what they cannot do. A correctional officer should be given a test every six months as to the laws pertaining to their duties. Every correctional officer should know they cannot forcibly penetrate the anus of a mentally unstable man brought in on misdemeanor charges.

This is the foundation of criminal justice. This is where the strength of the system begins. A faulty foundation will always lead to the destruction of the structure or organization. Do not confuse improvements with reform. Reform starts at the foundation.

Oh The Tangled Webs We Weave – Montana Board of Pardons and Parole

Montana Headlines: Montana’s new parole board is granting inmates’ release sooner after major changes made in 2017… according to data released by the Criminal Justice Oversight Council. The quicker parole process owes to changes made during the 2017 Legislature.

The Montana Board of Pardons and Parole transitioned from a seven member volunteer board to a five member board at a cost of one half million dollars a year to the tax payers of Montana. Board member Annette Carter made some very rosy statistics and data to the Criminal Justice Oversight Council. Shall we see what the real data is?

Data under the previous volunteer board:
January, 2017: The Board made final dispositions on 246 matters. The Board granted 59 paroles. This is a 24% parole rate.

February, 2017: The Board made final dispositions on 252 matters. The Board granted 61 paroles. This is a 24% parole rate.

March, 2017: The Board made final dispositions on 285 matters. The Board granted 81 paroles. This is a 28% parole rate.

The average parole rate under the old volunteer board for January, February and March 2017 is 25%.

Data under the new one half million dollar a year board:
January, 2018: The Board made final dispositions on 278 matters. The Board granted 70 paroles. This is a 25% parole rate.

February, 2018: The Board made final dispositions on 284 matters. The Board granted 77 paroles. This is a 27% parole rate.

March, 2018: The Board made final dispositions on 331 matters. The Board granted 88 paroles. This is a 27% parole rate.

The average parole rate under the new one half million dollar a year board for January, February and March 2018 is 26%.

For one half million dollars a year the State of Montana is getting a 1% increase in paroles granted.

There was broad bipartisan legislative support for the changes to the parole board. The bill passed 97-3 in the House and 47-3 in the Senate. Only six people were against the huge financial expenditures for a 1% increase in granted paroles.

I am not seeing the rosy picture Annette Carter presented to the Criminal Justice Oversight Committee. Data can be skewed in many ways to present brilliant work and great results. Wording of the data can skew the true meaning. The data provided to the Oversight Committee was for the one month of April 2018. The Board simply schedules in the month of April everyone they know they are going to parole. That would surely skew the great results of the Board.

Oh the tangled webs we weave when first we practice to deceive. Look at all the data before pronouncing the brilliant success of the Montana Board of Pardons and Parole. The new board achieved a 1% increase in parole over the old board.

State of Montana Board of Pardons and Parole – The Insanity Of The Group

In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. Friedrich Nietzsche. And so the insanity continues in the group known as The Montana Board of Pardons and Parole.

July 2017, a new Montana Board of Pardons and Parole was created under Senate Bill 64.  The Board went from a volunteer board to a five member board costing the state tax payers almost 1/2 a million dollars a year.  The board was created to address stability, accountability, transparency and arbitrary decisions, and to develop an offender reentry and risk  assessment.

Stability:  After less than one year since the board was created there has been a 40% turnover rate in board members.  Determining the valuation of a privately held company, a 40% employee turnover rate in less than one year would greatly devalue the effectiveness and stability of the company.  Montana tax payers should rate the stability of the Board of Pardons and Parole an F for failure of stability.

Accountability:  The Montana Board of Pardons and Parole (BOPP) fails to provide to offenders, formulas used to calculate their risk and assessment scores prior to parole hearings, prejudicing the inmates right to prepare for parole hearings. BOPP does not provide the criteria or methods used to complete the Montana Reentry Risk Assessment even after the inmate pays the required fee of $40.00 to obtain the information. Portions of parole packets have missing or incomplete psychological or cognitive evaluations.  Per Montana Statutes ARM 20.25.103(11) Montana tax payers should rate The Montana Board of Pardons and Parole an F for accountability for failure to abide by ARM 20.25.103(11) An offender may request to view his/her individual parole file by making a request in writing. Board staff will provide the offender an opportunity to inspect the file except for information deemed confidential.  

Montana tax payers should rate the Montana Board of Pardons and Parole an F for accountability for failure to abide by MCA 2-4-103. Rules and statements to be made available to public. (1) Each agency shall:(a) make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions;(b) upon request of any person, provide a copy of any rule.(2) Unless otherwise provided by statute, an agency may require the payment of the cost of providing such copies.(3) No agency rule is valid or effective against any person or party whose rights have been substantially prejudiced by an agency's failure to comply with the public inspection requirement herein.

Transparency and arbitrary decisions:  Under the newly configured Montana Board of Pardons and Parole all proceedings are to be video taped and audio tape recorded.  The Montana Board of Pardons and Parole routinely allow victim witnesses to testify before the inmates' scheduled parole hearing.  The prospective parolee and the parolee's attorney are precluded from attending the beginning of the hearing or during the testimony of the victim witness.  MCA 2-3-203(3) The presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open. At no time during these parole hearings does the record or recordings of the hearings indicate the Parole Board issued any findings that the victim witnesses individual privacy clearly exceeds the merits of public disclosure.  Parole Board members, without explanation or rulings, arbitrarily decide what is individual privacy.  Without any explanation to the prospective parolee the BOPP simply precludes that testimony from the record.  When counsel for the prospective parolee requests recordings of the private hearings the attorney is provided with blank and silent tape recordings of the beginning of the hearing.  The Board enters closed executive hearings with arbitrarily decided findings in violation of ARM 20.25.103 DISSEMINATION OF INFORMATION(1) As a public agency, all board records including any audio/video recordings are public. All board records are subject to disclosure except in cases in which the individual right of privacy clearly exceeds the merits of public disclosure, and in cases in which statute makes the record confidential.(7) Whenever a crime victim asserts an individual privacy interest, the board may not disseminate to the public the name, address, telephone number, or place of employment of the victim or a member of the victim's family unless otherwise required by law.  The Montana Board of Pardons and Parole cannot withhold from public view any more information than is required to protect an individual interest which is limited to name, address, phone number, place of employment or victim family member.  Yet the Montana Board of Pardons and Parole arbitrarily decides to provide  prospective parolee's attorneys with blank and silent audio recordings of the entire closed executive meeting.  Montana tax payers should rate The Montana Board of Pardons and Parole an F for failure to maintain transparency in executive meetings and an F for arbitrary decision making.

Development of Montana Offender Reentry and Risk Management (MORRA):  The parole board was required to create structured parole guidelines that are based on research and evidence-based practices. These guidelines will mandate that when making a release decision, the parole board consider a person’s risk level as determined by the Montana Offender Reentry Risk Assessment tool, MORRA.  MORRA is a gender-neutral standardized and validated evidence-based instrument used to assess the probability of an offender recidivating and to identify risk factors and criminogenic needs to guide and prioritize appropriate programming.  Morra is gender-neutral standardized guidelines. This is what MORRA encompasses.  The Community Supervision Screening tool is used for both male and female offenders as part of the pre-sentence investigation.  The Community Supervision Tool is used for male offenders.  The Prison Intake Tool is used for male offenders.  The Prison Screening tool is used for male offenders.  The Reentry tool is used for male offenders.  The Supplemental Reentry Tool focuses on male offenders.  The newly configured Montana Board of Pardons and Parole was tasked with the creation of  mandated structured parole guidelines and reentry programs.  All the guidelines the BOPP implemented are for male offender programming for successful reentry.  At Parole hearings the female offenders are simply screened for Pre-Release programs.  There is no programming implemented for successful female reentry.   Montana tax payers should rate The Montana Board of Pardons and Parole an F for failing to implement tools to assist female offenders with Offender Reentry and Risk Management tools.  

The cornerstone and linchpin for Montana correctional reform is based on the newly formed Montana Board of Pardons and Parole.  Montana tax payers are paying the board members one half of a million dollars a year to be the linchpin and cornerstone for the new reformation of criminal justice.

For one half of a million dollars a year, this is what Montana tax payers are getting:

STABILITY ------------- F FOR FAILURE
ACCOUNTABILITY -------- F FOR FAILURE
TRANSPARENCY AND
  ARBITRARY DECISIONS - F FOR FAILURE
DEVELOPMENT OF MONTANA
  OFFENDER REENTRY AND
  RISK MANAGEMENT ----- F FOR FAILURE

The famous German philosopher, Friedrich Nietzsche, was correct when he said insanity in groups is the rule.

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.