Southwest Montana Lawyer | The Montana Law Blog

Helena Independent Record Article on Medical Marijuana Patients and Republican Senators that Argue for Repeal or Amending MT's Medical Marijuana Law

2010-05-30T20:08:00.000-07:00

The Helena Independent Record published an article today that interviewed medical marijuana patients that have quit dangerous prescription painkillers and switched to medical marijuana. Republican state senator Jim Shockley opines that he wants to pass legislation that will repeal Montana's medical marijuana law that was overwhelmingly passed via the initiative process by Montana voters. The medical marijuana law was approved by 62% of voters in 2004. The article summarizes Shockley's position:

Shockley said he believes marijuana has medical benefits and should remain legal, although in a much more controlled way.

The newspaper interviewed Republican state senator Dave Lewis:

Two weeks ago, Lewis announced a plan to license a single statewide marijuana grower and dispense the drug through licensed pharmacies. The result would create a system not unlike Montana’s liquor distribution laws, Lewis said, with the state controlling the supply.

Read the article here.

Article on Montana Supreme Court candidates Judge Nels Swandal and Beth Baker Campaign Contributions

2010-05-30T19:56:00.000-07:00

Judge Nels Swandal raised $45,500 and Beth Baker raised $53,000 so far in their bids for the Montana Supreme Court. You can read the Helena Independent Record article here.

Should Judges and Justices in Montana be Elected?

2010-05-23T16:38:00.000-07:00

Retired U.S. Supreme Court Justice Sandra Day O'Connor argues in a New York Times opinion published today that state judges should not be elected. She argues against lifetime appointments and election of judges:

But judges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies.

This is an election year and, in Montana, judges and justices are elected in nonpartisan elections. Should Montana judges be elected? Should they be subject to political scrutiny based on the difficult and often times controversial decisions they make? Should decisions that enforce individual rights yet penalize the police subject judges to the passions and prejudices of the electorate? Should an unpopular but legally correct decision cost a judge his or her seat? The answer, of course, is no. Here's the method Justice O'Connor suggests:

A better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This kind of merit selection system — now used in some form in two-thirds of states — protects the impartiality of the judiciary without sacrificing accountability.

Just food your thought as we Montanans cast our ballots this year. You can read Justice O'Connor's opinion here.

Billings Gazette interviews Judge Sidney Thomas after Obama chooses Kagan

2010-05-10T18:54:00.000-07:00

The Billings Gazette interviewed Judge Sidney Thomas this morning regarding his consideration by President Obama for the U.S. Supreme Court:

"It was an honor to be considered," said the 56-year-old University of Montana Law School alum. "Elena Kagan is an excellent candidate with superb credentials."

You can read the article here.

Obama to nominate Elena Kagan for the U.S. Supreme Court

2010-05-09T20:51:00.000-07:00

The NY Times reports that Obama will nominate Solicitor General Elena Kagan to be the next U.S. Supreme Court justice. Read it here.

CNN discusses the pros and cons of Obama's top four choices for SCOTUS

2010-05-09T14:06:00.000-07:00

CNN wrote an article summarizing the pros and cons of the top four contenders, Elena Kagan, Judge Diane Wood, Judge Merrick Garland, and Judge Sidney Thomas, for the U.S. Supreme Court. Read it here.

U.S. District Court Judge Richard Cebull was interviewed by KULR8 about Judge Sidney Thomas

2010-05-07T21:43:00.000-07:00

U.S. District Court Judge Cebull was interviewed today by local news station KULR8. You can read the article and watch the interview here. Judge Cebull discusses how Judge Thomas would bring a western perspective to the U.S. Supreme Court.

U.S. Supreme Court Nominee Update

2010-05-05T18:16:00.000-07:00

The Washington Post speculates that Obama is likely to announce his nominee to the U.S. Supreme Court early next week. Read the article here.

NPR interviews Obama's senior adviser David Axelrod who suggests that Obama is looking for someone who will fill Justice Steven's leadership role over the liberal wing of the Supreme Court. Read the article here.

The NY Times published an article today about Judge Sidney Thomas entitled "Long Shot for High Court Has Reputation for Compassion and Persuasion." Like previous articles from the AP and Montana news sources, the piece discusses Judge Thomas' lengthy legal practice, sound judgment, non-Ivy League background and leadership qualities. The piece includes interviews with attorneys and law clerks as well as Judge Richard Cebull, chief judge of the U.S. District Court for the District of Montana, and Judge Alex Kozinski, chief judge of the Ninth Circuit Court of Appeals. The story also interviewed several conservatives who intend to oppose Judge Thomas (or anyone else for that matter) if nominated. You can read the article here.

Law.com posted an article with the title "Potential High Court Nominee Thomas Would Fit Obama Narrative." The name says it all. You can read the article here.

Bozeman Daily Chronicle interviews people who shed light on Judge Sidney Thomas' early years prior to becoming a judge

2010-05-02T11:19:00.000-07:00

The Bozeman Daily Chronicle wrote an article in todays edition discussing Judge Sidney Thomas' time at Bozeman High School, on the university board of reagents, at Montana State University, and at The University of Montana School of Law. The article includes interviews with people who knew Judge Thomas during his early years prior to becoming a judge on the Ninth Circuit Court of Appeals. You can read the article here.

Yellowstone County District Court Judge discusses Judge Sidney Thomas for SCOTUS

2010-05-01T11:30:00.000-07:00

Yellowstone County District Court Judge Todd Baugh was interviewed about Judge Sidney Thomas by KULR-TV in Billings. Judge Baugh stated "he's got the proper legal experience, he's certainly qualified, he's a good man, well respected." He described Judge Thomas "as somewhat moderate" and believes he would be confirmed by the U.S. Senate "without a big fight." You can read the article here.

AP speculates Judge Sidney Thomas is under a higher level of consideration by the president than other SCOTUS considerations

2010-04-30T17:06:00.000-07:00

The AP reported today that Judge Sidney Thomas had been personally interviewed this Thursday by President Obama and Vice President Biden. The AP speculates that the personal time Obama has devoted to Judge Thomas indicates that he is under a higher level of consideration for the United States Supreme Court by the president than other potential nominees. As discussed in earlier posts on this blog, Judge Thomas sits on the 9th Circuit Court of Appeals, lives in Billings, Montana, and graduated from Montana State University and The University of Montana School of Law. You can read the AP story here.

AOL writes about Judge Sidney Thomas' background

2010-04-21T17:08:00.000-07:00

AOL posted an online article entitled "6 Things to Know About Supreme Court Short-Listee Sidney Thomas." You can read the article here.

Billings Gazette opines that Judge Sidney Thomas would be a great pick for SCOTUS

2010-04-20T20:03:00.000-07:00

The Billings Gazette wrote an editorial essentially endorsing Judge Sidney Thomas for the U.S. Supreme Court:

According to national news reports, Thomas isn’t considered among the favorites on a list of 10 potential nominees to replace liberal-leaning Justice John Paul Stevens. However, Thomas is an excellent justice candidate who doesn’t carry the political baggage of the favorites. In the highly partisan atmosphere of Washington, D.C., in 2010, Obama would do well to pick Thomas for his high qualifications and relatively low controversy.

“To have a Montanan as a potential nominee to serve on the highest court in the land is a tremendous honor for our state,” Baucus said last week. To that we add: To have Sidney Thomas become the first Montanan to serve on the high court would be a tremendous boon to justice in America.

You can read the editorial here.

Newsweek "Race for the Robe" Blog currently has Judge Sidney Thomas in Third Place in the running for SCOTUS

2010-04-19T11:29:00.000-07:00

Here is a Newsweek blog that ranks the various potential nominees' chances for nomination to the U.S. Supreme Court. As of April 19, 2010, according to Newsweek, Judge Thomas is in 3rd place.

More Praise for Judge Sidney Thomas . . .

2010-04-18T11:18:00.000-07:00

The Missoulian interviewed three U.S. District Court Judges all of whom praised Judge Sidney Thomas. The Missoulian also interviewed attorneys that practiced law with Judge Thomas. Everyone in the article agrees Judge Thomas would be a great pick for the U.S. Supreme Court. You can read the article here.

Montana Supreme Court Candidate Judge Nels Swandal of Livingston Will Hear Alleged New Evidence in Barry Beach Case

2010-04-16T20:24:00.000-07:00

Park County District Judge Nels Swandal of Livingston has been appointed to hear new evidence in the Barry Beach case. As discussed earlier on this blog, Barry Beach, who is serving a 100-year prison sentence for allegedly killing 17-year-old Kim Nees on the Fork Peck Indian Reservation in 1979, has maintained that he is innocent of the crime. Judge Swandal will 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 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. You can read the Great Falls Tribune story on this new development here.

Judge Swandal is currently running for the Montana Supreme Court.

AP Story on Judge Sidney Thomas

2010-04-16T19:39:00.001-07:00

Here's an AP story about Judge Thomas with commentary from U.S. District Court Judge Donald Molloy, retired Montana Supreme Court Justice Jim Regnier, and others from Montana.

Judge Sidney Thomas - University of Montana School of Law Grad - Considered for U.S. Supreme Court

2010-04-16T19:19:00.000-07:00

President Obama is reportedly considering Judge Sidney Thomas of the Ninth Circuit Court of Appeals for the United States Supreme Court. Judge Thomas received his bachelor's degree from Montana State University and his law degree from The University of Montana School of Law. Judge Thomas' opinions make clear that he is a strong supporter of individual rights and would be a great addition to the Court. You can read the NY Times article regarding his consideration here. Should Judge Thomas be nominated and confirmed for the U.S. Supreme Court, he would be the only non-Ivy League graduate on the Court. His addition would add a western voice to the Court that has been absent since Justice Sandra Day O'Connor's retirement. You can read a NY Times article regarding Senate Democrats' desire for a non-Ivy League Supreme Court nominee here.

Late Update: Aid in Dying Proponents Prevail in Montana Supreme Court Case - But Not on Constitutional Grounds

2010-01-29T15:40:00.000-08:00

This blog article was intended to be published much earlier in the year. Better late than never. In December, the Montana Supreme Court issued its opinion in Baxter v. State, the controversial Aid in Dying case. The Court held that, under current Montana law, "a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply." The Court stated:

In conclusion, we find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. The “against public policy” exception to consent has been interpreted by this Court as applicable to violent breaches of the public peace. Physician aid in dying does not satisfy that definition. We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient— not the physician—commits the final death-causing act by self-administering a lethal dose of medicine.

Furthermore, the Montana Rights of the Terminally Ill Act indicates legislative respect for a patient’s autonomous right to decide if and how he will receive medical treatment at the end of his life. The Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient’s end-of-life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive. There is no statutory indication that lesser end-of-life physician involvement, in which the patient himself commits the final act, is against public policy. We therefore hold that under § 45-2-211, MCA, a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply.

The Court declined to decide the case on constitutional grounds--although Justice Nelson filed a concurring opinion arguing that the Court should have ruled Montana's Privacy and Dignity Clauses under Article II, Sections 4 and 10 of the Montana Constitution protect an individual right to physician aid in dying:

In conclusion, while I join the Court’s decision, I also would affirm the District Court’s ruling on the constitutional issues. I agree with the Court’s statutory analysis, but I also agree with Judge McCarter that physician aid in dying is firmly protected by Article II, Sections 4 and 10 of the Montana Constitution. Under these sections, individuals who are mentally competent and incurably ill and face death within a relatively short period of time have the right to self-administer, at a time and place of their choosing, a life-ending substance prescribed by their physician. The physician simply makes the medication available to the patient who requests it and the patient ultimately chooses whether to cause her own death by self-administering the medicine.

This right to physician aid in dying quintessentially involves the inviolable right to human dignity—our most fragile fundamental right. Montana’s Dignity Clause does not permit a person or entity to force an agonizing, dehumanizing, demeaning, and often protracted death upon a mentally competent, incurably ill individual for the sake of political ideology, religious belief, or a paternalistic sense of ethics. Society does not have the right to strip a mentally competent, incurably ill individual of her inviolable human dignity when she seeks aid in dying from her physician. Dignity is a fundamental component of humanness; it is intrinsic to our species; it must be respected throughout life; and it must be honored when one’s inevitable destiny is death from an incurable illness.

The case leaves open the issue as to whether the Dignity and Privacy Clauses do in fact protect an individual right to physician aid in dying. The issue will likely be addressed in future legislation or initiatives and subsequent court challenges. You can read the New York Times article here. You can read the opinion on the Montana Supreme Court's website.

Update: Bozeman Parking Ticket Increase and "Booting" of Vehicles Begins Monday

2010-01-29T15:28:00.000-08:00

On Monday, parking tickets in Bozeman will increase by $5 and the police will begin "booting" the vehicles of repeat offenders. You can read the Bozeman Daily Chronicle article here.

Great Falls Tribune article on U.S. Attorney Michael Cotter and Justice Cotter

2010-01-18T19:18:00.000-08:00

The Great Falls Tribune ran a story on U.S. Attorney Mike Cotter and Montana Supreme Court Justice Patricia Cotter entitled "The Cotters: Montana's power couple." You can read the article here.

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

2009-12-31T13:25:00.000-08:00

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

2009-12-31T11:43:00.000-08:00

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

2009-12-24T20:01:00.000-08:00

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

2009-12-21T10:33:00.001-08:00

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

2009-12-20T11:36:00.000-08:00

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

2009-11-27T21:27:00.000-08:00

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

2009-10-24T11:10:00.000-07:00

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

2009-10-24T10:56:00.001-07:00

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

2009-10-12T18:07:00.000-07:00

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

2009-10-05T12:26:00.000-07:00

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

2009-09-30T14:49:00.000-07:00

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

2009-09-12T09:49:00.000-07:00

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

2009-09-04T22:08:00.001-07:00

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

2009-09-04T16:16:00.000-07:00

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?

2009-09-03T20:40:00.000-07:00

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

2009-09-01T13:18:00.000-07:00

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

2009-09-01T13:08:00.000-07:00

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

2009-08-22T13:25:00.000-07:00

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

2009-08-17T19:41:00.000-07:00

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

2009-08-12T16:19:00.000-07:00

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

2009-08-08T10:23:00.000-07:00

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

2009-08-08T09:06:00.000-07:00

Read the NY Times article here.

Non-unanimous Juries? Not in Montana.

2009-07-06T17:39:00.000-07:00

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

2009-06-29T16:32:00.000-07:00

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

2009-06-24T21:11:00.000-07:00

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

2009-05-24T19:36:00.000-07:00

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

2009-05-23T23:29:00.000-07:00

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.

UP AND RUNNING

2009-05-23T22:20:00.000-07:00

Posts to follow soon . . . .