Montana prison overcrowding

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.

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.

Montana Senate Bill 63, The Constitution and The Gestapo

Montana Senate Bill 63 was introduced and passed by the 2017 Legislature by request of The Commission on Sentencing. Unfortunately, this bill will have a chilling effect on the constitutional rights of all defendants. If only the creators of this bill knew what they were actually doing, the creators of this bill would be appalled. The creators of this bill have no idea the underlying use of Senate Bill 63.

Constitution of United States of America 1789 (rev. 1992)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

CONSTITUTION
of the
STATE OF MONTANA
PREAMBLE
We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.

ARTICLE II
DECLARATION OF RIGHT

Sectn 24. RIGHTS OF THE ACCUSED. In all criminal prosecutions the accused
shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.

The heart of Senate Bill 63 is an act allowing the early termination of remaining portions of deferred or suspended sentences. In the case of deferred sentencing, the offender can be released from supervision after serving two years or one-half of the sentence, whichever is less. In the case of a suspended sentence, the offender can be released from supervision after serving 3 years or two-thirds of the time suspended, whichever is less. Conditional release can be granted as soon as the probationer has completed 9 months. This sounds really good!! The caveat to this bill is the defendant has to pay all restitution and court-ordered financial obligations in full. This caveat will be used as a tool to induce defendants to plead guilty or accept a plea bargain rather than exercise their constitutional rights to a trial, wherein they could be found not guilty. Let me explain how this bill is nothing but a tool for prosecutors.

A defendant that exercises their constitutional right to a trial will, through the arbitrary decision of the judge or request of the county attorney, be charged for the cost of the trial. These costs include the time of the county attorney, witness fees and expenses, investigator costs, jury costs, the cost of the judges' time and defense attorney charges and expenses. This can amount to thousands and thousands of dollars. The prosecutor comes in like the Gestapo and, with steel-toed boots, uses this Senate Bill to induce the defendant, with provisions of an early release from supervision, to plead guilty and not incur the expenses of paying for a trial. If they request a trial the defendant can never get early release from supervision because they can't pay all court-ordered financial obligations. The cost of exercising constitutional rights can amount to a lifetime sentence because the county attorney then places liens on all property of the defendant to pay for the trial. You choose, early release because there are no court-ordered financial obligations or a lifetime of paying court-ordered financial obligations and no chance of early release. This is the choice offered by Senate Bill 63.

Senate Bill 63 has only provided a tool to prosecutors. Defendants can exercise their constitutional right to a trial and get a lifetime sentence paying for the cost of the trial. Or, they can figuratively be kicked with steel-toed Gestapo boots into accepting a plea for early release of supervision as provided by Senate Bill 63 because there are no court-ordered financial obligations.

The creators of this bill have no idea of the underlying use of this bill. The underlying use will be used to induce defendants to plead guilty, waive their constitutional rights and, in many cases, innocent people will be convicted. All with the promise of early release and no court-ordered financial obligations.

Senate Bill 63 ushers in the Gestapo and disposes of this preamble:
CONSTITUTION
of the
STATE OF MONTANA
PREAMBLE
We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.