Michael Cotter is now U.S. Attorney for the District of Montana

Mike Cotter has been officially sworn in. Read the Great Falls Tribune article here.

Michael Cotter has been confirmed by the U.S. Senate to be Montana's next U.S. Attorney

Mike Cotter has been confirmed by the U.S. Senate to be Montana's next U.S. Attorney. He has yet to be sworn in. You can read the Missoulian article here.

Bozeman Attorney Mike Wheat is Appointed by Governor to the Montana Supreme Court

Governor Brian Schweitzer on Wednesday appointed Bozeman, Montana attorney Mike Wheat to serve out Justice John Warner's term on the Montana Supreme Court. You can read the Missoulian article on the appointment here.

Michael Cotter's Nomination Forwarded to the U.S. Senate for Confirmation Vote

Michael Cotter is one step closer to becoming Montana's next U.S. Attorney. On Thursday, the Senate Judiciary Committee forwarded Cotter's nomination to the full Senate for a confirmation vote. You can read the Great Falls Tribune article here.

Montana Supreme Court Remands the Barry Beach, Poplar, Montana case to the District Court to Reconsider Barry Beach's Alleged Exculpatory Evidence

The Great Falls Tribune has done a great job chronicling the Barry Beach case and Beach's claim that he was wrongfully convicted of the 1979 murder of Kim Nees, a 17-year-old Poplar High School valedictorian. Beach was convicted of Nees' murder in 1984 and has been serving a life sentence ever since. Beach has maintained his innocence the entire time.

On November 24, 2009, the Montana Supreme Court reversed the Roosevelt County District Court's denial of Beach's petition for post conviction relief that was based on newly discovered evidence. The Court stated in its opinion:

[W]e remand Beach’s petition to the District Court to conduct an evidentiary hearing on the newly discovered evidence alleged in Beach’s petition. The court must evaluate whether Beach’s alleged new evidence constitutes actual new evidence. The court shall apply a modified version of the five-prong Clark test and the Schlup “clear and convincing” standard to Beach’s alleged newly discovered evidence to determine in the first instance whether Beach’s petition establishes that a “jury could find, in light of the newly discovered evidence,” that Beach actually is innocent of his crime. Redcrow, ¶ 37. The court must assess whether a jury, acting reasonably, would have voted to find Beach guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329, 115 S. Ct. at 868. The District Court shall provide a written order of its decision in accordance with the legal standards set forth in this opinion.

The Great Falls Tribune article discusses some of the evidnce in the case. You can read the article here.

Conservative and Liberal Groups Unite Over U.S. Supreme Court Criminal Cases

There was an interesting article in the NY Times on Monday discussing how conservative, libertarian, and business groups are lining up with civil libertarians and criminal defense attorneys on the side of the criminally accused in several cases before the U.S. Supreme Court. The article does a good job of discussing the motivations of the various groups. You can read the NY Times article here.

U.S. Justice Department Issues Memo Regarding the Prosecution of Medical Marijuana Patients and Caregivers Relevant to Montana

On October 19, 2009, the U.S. Justice Department issued a Memorandum to Selected United States Attorneys regarding federal prosecution of medical marijuana patients and caregivers who are in legal compliance with their respective state medical marijuana law. The memo states:

"As a general matter, pursuit of [the prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks] should not focus federal resources in your States on
individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. ."

U.S. Attorney General Eric Holder stated:

“It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana.”

Although Montanan's passed legislation legalizing the use of medical marijuana, patients and caregivers can still face federal drug charges even though the patient or caregiver is in compliance with Montana state law. Montana requires a series of steps for a person to become eligible to obtain a medical marijuana card allowing him or her the lawful ability to use marijuana for medicinal purposes. This memo provides insight into the priorities of the U.S. Justice Department. You can read the New York Times article on the memo here.

Gallatin County Treatment Court

The Bozeman Daily Chronicle wrote a piece on a successful participant and graduate of the Gallatin County Treatment Court. The county began its treatment court program about ten years ago for the treatment of people struggling with alcohol and drug addictions who have also been charged with a crime in state court. The program provides an alternative to old school incarceration and retributive theories of justice by providing participants tools to overcome their addictions and become more productive members of society. You can read the article here.

UPDATE: State Sen. Greg Barkus Charged With Felony Counts in Boating Accident Involving Montana U.S. Represenative Dennis Rehberg

State Sen. Greg Barkus has been charged with criminal endangerment and two counts of negligent vehicular assault--all felonies--for the boating accident at Flathead Lake that involved Montana U.S. Rep. Denny Rehberg. Rehberg suffered a broken ankle and other injuries in the crash. Sen. Barkus is alleged to have driven the boat with a blood-alcohol level of 0.16 according to a test that was allegedly taken nearly two hours after the accident.

Rehberg made the following statement regarding the allegations:

"I was surprised to learn the results of Greg's blood alcohol test." "He didn't appear to be impaired to me when we got on the boat for the return trip."

You can read the AP article on the CBS News page here.

Obama Nominates Michael Cotter for Montana U.S. Attorney

The White House has nominated Michael Cotter of Helena, Montana to serve as U.S. Attorney for the District of Montana. You can read the Missoulian article here. Cotter must be confirmed by the U.S. Senate before serving as U.S. Attorney.

U.S. Supreme Court to Decide Whether Second Amendment of U.S. Constitution Applies to the States

The U.S. Supreme Court has accepted certiorari in the case of McDonald v. Chicago and will decide whether the Second Amendment to the U.S. Constitution applies to the States. Last year, in the case of District of Columbia v. Heller, the Court struck down a District of Columbia firearm restriction. The Heller Court held for the first time that the Second Amendment is an individual right unconnected with service in a militia. While the Court held that the Second Amendment applies to the federal government, it left open the question as to whether it applies to the States. You can read the NY Times article on the McDonald case here.

UPDATE: Investigation Continues in Boat Crash Case That Injured Congressman Rehberg

Law enforcement has issued a subpoena for the medical records of the operator of the boat, state Sen. Greg Barkus, that crashed and injured Congressman Rehberg and company in late August. Read the Missoulian article here.

UPDATE: Montana's News Station has a page that is updated periodically with news on this case. Rehberg's back to work, prosecutor alleges that Barkus was drinking on the night in question, and law enforcement is awaiting the results of Barkus' blood alcohol concentration from the Montana crime lab. You can find the page here.

YouTube of Attorney's Oral Argument in Aid-in-Dying Case

Here is a link to plaintiff/respondent's oral argument before the Montana Supreme Court in the aid-in-dying case previously discussed on this blog.

Bozeman Police Officer Resigns Following Facebook Controversy

Officer Cody Anderson has resigned from the Bozeman Police Department as a result of controversial statements he allegedly made on his Facebook page. Read the Bozeman Daily Chronicle's story here.

Justice Stevens Retiring?

New speculation emerges that U.S. Supreme Court Justice John Paul Stevens may be retiring. Typically, a Supreme Court Justice hires at least four law clerks. Justice Stevens has only hired one. Read the NY Times Article here.

Montana Supreme Court to Rule on Aid-In-Dying / Treatment to End Life Case

An article appearing yesterday in the NY Times does a decent job of summarizing the controversy and significance of the pending Montana Supreme Court case regarding aid-in-dying / treatment to end life. Interested groups have filed no less than 20 amicus curiae briefs on both sides of the issue. The article discusses Montana's unique constitution and the heightened individual privacy and dignity protections that Montanan's enjoy.

UPDATE: Oral arguments were held in this case yesterday. Read the Billings Gazette article here.

Utah Gets Tough With Texting Drivers

Check out this NY Times article regarding Utah's laws regarding texting and driving. The article cites studies that show that talking on a cellphone is as risky as driving with a .08 BAC and texting is at least twice as dangerous.

Bozeman City Commission to Consider Raising Parking Ticket Prices

The Bozeman City Commission will likely be increasing the fine for parking violations on Monday. Read the article here.

UPDATE: The Bozeman City Commission has delayed its decision in this matter. Read the article here.

90 percent of U.S. bills carry traces of cocaine

CNN had a rather interesting article on its web page today entitled "90 percent of U.S. bills carry traces of cocaine." Read the article here.

Bozeman police kill dog in Cooper Park area

Few stories have generated more impassioned comments on the Bozeman Chronicle's website than today's story entitled "Police kill dog in Cooper Park area." Read the story and comments here.

Massive Damage After Butte, Montana Hail Storm

Golf ball sized hail hit Butte, Montana two days ago causing massive damage to property. Check out the picture in this Montana Standard article, which measures the size of the hail that landed in a Butte resident's yard. The article can be found here.

Sotomayor Sworn In as U.S. Supreme Court Justice

Read the NY Times article here.

Non-unanimous Juries? Not in Montana.

The New York Times had an interesting article today on the topic of unanimous juries. In Montana, under Article II, Section 26 of the Montana Constitution, people charged with crimes in Montana state courts have a constitutional right to a jury trial:

Section 26. Trial by jury. The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.

As set forth above, Section 26 provides that, in a criminal case, a jury guilty verdict must be unanimous. Most Montanans probably already knew that to be the case, but may be surprised to learn that Oregon and Louisiana require only 10 out of 12 jurors to agree that a person is guilty of a crime for a conviction. Clearly we are fortunate in Montana to have a strong constitution protecting individual rights. The article discusses an Oregon man's appeal to the U.S. Supreme Court to challenge his Oregon conviction in which only 10 out of 12 jurors voted to convict. According to the NY Times, the appeal is supported by "the American Bar Association, experts in jury behavior, legal historians, the criminal defense bar and civil rights lawyers." The article raises the appropriate question as to whether 84% of jurors agreeing with the prosecution is sufficient--clearly, from a constitutional perspective, it should not be.

Bernie Madoff Sentenced in Ponzi Scheme Case - Montanan Investors Were Victims

Bernard L. Madoff was sentenced in federal court today to 150 years in prison for his Ponzi Scheme that went south along with the economy. Bloomberg has reported that Montanan investors have lost at least $18 million by unwittingly investing in Madoff's scheme.

The National Criminal Justice Commission Act of 2009

Check out Senator Webb's informational website on the National Criminal Justice Commission Act of 2009, an Act he introduced in the Senate in March to reform America's criminal justice system. Below is a excerpt taken from his website explaining why the Senator believes the Act is necessary:

The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process.

Why We Urgently Need this Legislation:

• With 5% of the world's population, our country now houses 25% of the world's reported prisoners.

• Incarcerated drug offenders have soared 1200% since 1980.

• Four times as many mentally ill people are in prisons than in mental health hospitals.

• Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.

• Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

Senator Webb's artice in Parade can be found here.

Montana Self Defense

One of the most interesting bills to be passed into law this legislative term is Montana's new gun and self defense law House Bill 228. Although HB 228 is notable for its provisions regarding firearms, it is also notable for the way in which it changed the burden of proof for the affirmative defense of justifiable use of force--a defense often raised in assault and homicide cases. Prior to the the passage of this bill, a criminal defendant that claimed self defense had the burden at trial to produce sufficient evidence to raise a reasonable doubt of his guilt based on his or her justifiable use of force defense. However, HB 228 added the following provision:

Justifiable use of force -- burden of proof. In a criminal trial, when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified.

In other words, the prosecution now has the burden, once self defense is raised by the defendant, to prove beyond a reasonable doubt that the defendant's use of force was not justified--the way it should be.

The Site

The purpose of this blog is to provide informative commentary about current events (and sometimes not so current events) in Montana law. Feel free to leave comments regarding the topics it covers and suggestions for future commentary. We hope this blog will attract others in the Montana legal community who will be interested in providing content to this site.

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