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Fight 'Em 'Til We Can't A Montana criminal defense blog. 2009-12-15T03:51:26Z http://mtcrimlaw.com/feed/atom/ WordPress tc http://mtcrimlaw.com <![CDATA[Just because there’s a body, that doesn’t mean there’s a crime.]]> http://mtcrimlaw.com/?p=235 2009-12-15T03:51:26Z 2009-12-15T03:51:26Z Kudos to law enforcement officials in Yellowstone County who decided to release Daisy Rae Morast today. Morast had been held in the county jail since Saturday for the stabbing death of her husband, Jason Morast. Today, Billings police Sgt. Kevin Iffland says Morast was released because the evidence, including two horrific 911 calls, show she has “a substantial claim of justifiable use of force.”

It’s great to see these officials exercising the discretion that justice requires. It happens far too seldom, which makes it all the better when it does happen.

Of course, further investigation could put Daisy Morast back in jail. It’s hard to say. But for now… Good luck, Daisy. You’re going to need it.

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tc http://mtcrimlaw.com <![CDATA[The Sweet Sound of “Not Guilty”]]> http://mtcrimlaw.com/?p=232 2009-07-02T03:28:44Z 2009-07-02T03:28:44Z I saw a jury deliver a “Not Guilty” verdict today. I had nothing to do with the case but it was still an exhilarating moment. There’s nothing quite like that tension, anxiety, and fear in those moments when the judge asks the jury if they have reached a verdict, and the foreperson responds, “yes, your honor, we have.” You’re on the edge of your seat, heart racing, searching the faces of the jurors to pick up any sign of what they are going to say, and then, simple as that, there it is: “Not guilty, your honor.”

Really, what could be sweeter?

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tc http://mtcrimlaw.com <![CDATA[Woman finds ‘Goldilocks’ snoring in her son’s bed]]> http://mtcrimlaw.com/2008/09/21/woman-finds-goldilocks-snoring-in-her-sons-bed/ 2008-09-21T15:12:36Z 2008-09-21T15:12:36Z Judge Susan Watters set bail at $5,000 after rejecting a request that he be released without bail. Public defender Richard Phillips, who made the request, said Mullins had been receiving mental-health counseling. @.

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tc http://mtcrimlaw.com <![CDATA[Bail set for youth held in Huntley arson]]> http://mtcrimlaw.com/2008/09/21/bail-set-for-youth-held-in-huntley-arson/ 2008-09-21T15:11:26Z 2008-09-21T15:11:26Z Sampson argued that the high bond sought by prosecutors was “disproportionate” to the allegations and “simply more fuel to the emotional fire.” She asked the judge to consider releasing Victoria to the custody of his parents, who attended the hearing, or an aunt who lives in Billings. @.

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tc http://mtcrimlaw.com <![CDATA[Montana mom kept dead son in car trunk]]> http://mtcrimlaw.com/?p=225 2008-09-12T15:01:07Z 2008-09-12T15:01:07Z The body of a toddler found in the trunk of his mother’s car may have been there for months as she drove around town, evaded questions about him and was even arrested, police said. @

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tc http://mtcrimlaw.com <![CDATA[The 6th Amendment Right to Counsel]]> http://mtcrimlaw.com/?p=223 2008-09-02T05:35:00Z 2008-09-02T05:33:17Z Picking up on my offhand comment in the last post that the SCOTUS recently said the right to counsel begins at initial appearance: The decision came down in June in Rothgery v. Gillespie County. I haven’t yet been ambitious enough to read the full decision, but according to the lengthy summary from SCOTUSblog, all that case said is that the right to counsel attaches at initial appearance. What that means, e.g., how quickly after initial appearance a person must have access to counsel and for what types of hearings or purposes, remains unclear. However, it appears the case does not say that a person has a right to have an attorney present at initial appearance. That sounds like bullshit to me, but there you have it. Your right “attaches” there; what “attaches” means in practice remains open to interpretation, apparently.

Here’s what the test should be: Are you in jail? If so, you have a right to an attorney at any and all appearances before a judge and at any and all interactions with law enforcement (other than jail staff; that would be unworkable). Of course, you can waive that right, and many people do, but that’s a nice bright line. If you’re not in jail but have been ticketed or given a notice to appear, you should be informed of your right to counsel along w/the citation/notice and given instructions for contacting the public defender for advice prior to initial appearance. This could be handled nicely by making sure there a public defender was present at all initial appearances, but I won’t be holding my breath for that one.

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tc http://mtcrimlaw.com <![CDATA[Problems in courts of limited jurisdiction]]> http://mtcrimlaw.com/?p=221 2008-09-01T01:17:16Z 2008-09-01T00:07:15Z Today’s Billings Gazette features a front-page exposé of the problems in Stillwater County Justice Court. It seems the justice of the peace has regularly held one-on-one arraignments at the county jail for maybe 20 years. These are arraignments that are basically secret—she does not inform the prosecution or any potential defense counsel that she’s going to hold the arraignments. She holds them randomly; often on weekends and holidays.

What SCOTUS decision of the last term said the right to counsel begins at initial appearance? If I were a good blogger, I’d look it up and tell you, but it’s there. Nearly every court of limited jurisdiction in Region 9 of the Montana State Office of Public Defender regularly holds initial appearances in a similar way — randomly, without notifying prosecution or defense. Sure, the judges advise the accused of their rights, but that’s very different from making sure the accused has access to an attorney right then and there.

The Gazoo article also highlights the problematic practice of these courts initiating revocation procedings sua sponte and again w/o notifying defense or prosecution. The law in these areas seems clear that these practices are not legal, yet they go on day after day. Oh, and how does the public feel about it? The Gazoo readership sees no problem here. Welcome to Montana! Yeeehaw!

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tc http://mtcrimlaw.com <![CDATA[Conflict of interest?]]> http://mtcrimlaw.com/2008/04/22/conflict-of-interest/ 2008-07-31T19:56:14Z 2008-04-22T13:14:17Z Is it a conflict of interest for the Regional Deputy Public Defender in a region to be the son of one of the few District Court judges in that region?

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tc http://mtcrimlaw.com <![CDATA[Local Loco Cop]]> http://mtcrimlaw.com/2008/04/20/local-loco-cop/ 2008-04-20T16:17:33Z 2008-04-20T16:09:19Z The Billings media is all abuzz about a nearby small town cop who arrested someone for misdemeanor DUI and negligent endangerment after the cop shot at the guy through the windshield of his own patrol car. Yeah. Video available at the above link, w/more here and here.

Also in the local headlines, a high speed chase took another life Friday morning. There are some jurisdictions that have made it illegal for cops to pursue at high speeds in urban areas. The logic is: If you don’t chase at high speeds, people are much less likely to drive at high speeds where doing so puts many people at risk. Get the license plate, send cars ahead, monitor the suspect, and pick that person up later. Could such a tactic have saved this woman’s life? We’ll never know, but it certainly makes sense to me.

Unfortunately, it looks like the victim’s family won’t be able to sue the pursuing cops, at least it doesn’t sound like it based on this report of a 2007 SCOTUS decision on a similar issue. More comment here, w/links to what was apparently the decisve cop car video in the case, which was Scott v. Harris. Fascinating. Someday I’d love to have time to dig deeper into this, but it’s not going to be today….

For something completely different, here’s how a federal jury is picked in Billings and that “Montana is the largest geographically of the 94 judicial districts in the continental U.S.,” meaning some jurors might have to drive nearly 300 miles to appear for jury duty. Crazy. Also in the story: A potentially good voir dire question when you think race might be a factor in your case: “Do you tell jokes about minorities?” It’s amazing how many people do, which is just one reason why Judge Cebull’s claim that race “doesn’t matter to Montana juries” is naive at best. Montana is somehow the only place in the country that sees no color? Riiiiight.

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tc http://mtcrimlaw.com <![CDATA[It could always get worse]]> http://mtcrimlaw.com/2008/03/30/it-could-always-get-worse/ 2008-03-30T16:45:08Z 2008-03-30T16:44:24Z Almost anyone involved with the Office of the State Public Defender in Montana can tell you: This first 18 months has been a little rocky. There’s not enough money and that means there’s not enough people or other resources to fulfill the mandates set for the Office by the legislature and the ACLU case that started this whole ball rolling. Of course, those are the same problems plaguing indigent defense systems nationwide; usually it’s just a matter of degree. Take, for example, Missouri, where it appears things have truly reached a state of crisis.

That story doesn’t provide much detail, but it does suggest the attorneys are stuck between a rock and a hard place. The courts are saying they’re personally liable for inadequate or ineffective assistance of counsel, regardless of the fact that the legislature won’t provide them the resources they need to do their jobs. So what is a lawyer to do? Have they begun refusing to take cases? That might be a start. Of course, then the article says the legislature is “considering” a bill that would allow the lawyers to refuse to take case. Um, what? You mean to say there’s some law saying they can’t refuse? Even when their rules of professional conduct say they must refuse if they cannot adequately represent new clients? Whoa.

Obviously no matter how bad things seem, they could always get worse….

Meanwhile, it sounds like the Vermont Supreme Court just issued a fascinating opinion on speedy trial delays. If the news article is correct, it says that public defenders are part of “the state,” so delay caused by a public defender is attributable to the state, not to the defendant. Crazy. I mean, it actually might be a more fair way to look at it in many cases where a public defender’s heavy workload means he/she isn’t ready for trial and has to ask for more time through no fault of the defendant, but still, this decision would turn speedy trial analysis upside down in Montana.

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