In 2017, Robert Allery was charged with assault with a weapon for stabbing a man 27 times.

His trial wasn’t until October 2020, when a jury found him guilty.

In February 2021, Judge John Parker sentenced Allery to 20 years with the Montana Department of Public Health and Human Services with 10 years suspended.

Allery appealed the conviction on the grounds that the more than three-year delay between his arrest and trial violated his constitutional right to a speedy trial.

The Eighth Judicial District Court concluded that the delay did not violate his rights.

On Feb. 7, 2023, the Montana Supreme Court reversed Parker’s decision and vacated Allery’s conviction.

Cascade County Attorney Josh Racki said that Allery will be released.

The District Court appointed counsel for Allery and set his trial for November 2017. The prosecutor and Allery’s attorney agreed that Allery needed a mental health evaluation to determine his fitness to stand trial and the court suspended proceedings for an evaluation, according to the Supreme Court documents.

The District Court order directed the Cascade County Sheriff’s Office to transfer Allery to the Montana State Hospital as soon as there was an opening and the hospital was to accept and care for Allery for up to 60 days and report its findings to the court, according to court documents.

The Montana State Hospital didn’t have an opening for more than eight months and Allery spent that time in the county jail, where he did not have access to a medication assessment or mental health treatment, according to court documents.

Allery was transferred to MSH in August 2018 and faced further delays. The state moved for an extension due to staffing shortages and the court granted another month. When that month was up, the state requested and the court granted another extension due to the staffing shortages.

The hospital completed Allery’s first evaluation in December 2018, more than a year after the court had ordered it, and concluded that Allery was not fit to stand trial “because he was unable to understand the case against him or to assist his attorney. Evaluators determined that Allery was suffering from a psychotic disorder and prescribed him an antipsychotic medication. They predicted that continued treatment could facilitate Allery’s fitness for trial. The court accordingly suspended criminal proceedings and committed Allery to MSH to regain fitness,” according to the Supreme Court opinion.

Allery was evaluation again in March 2019 and evaluators determined that his fitness to stand trial was impaired. Allery had started to refuse medication in December 2018 due to side affects. His dosage was increased with an observation protocol to ensure Allery was taking his medication, according to court documents.

MSH evaluators said more care would lead to fitness in the near future and that “Allery had been acutely psychotic at the time of the alleged assault, suggesting that he was unable to appreciate the criminality of his conduct and conform his conduct to the requirement of the law,” according to court documents.

A few months later, Allery was assessed a third time and found fit to stand trial, but it was cautious since he was suffering from a psychotic disorder, according to court documents. Evaluators recommended that he remain at MSP until his hearing to be monitors and treatment gains could be maintained.

In June 2019, the District Court held a hearing regarding Allery’s fitness and the court ordered Allery back to the county jail. The judge stated that “he had it ‘on good authority’ that MSH could use an extra bed, and the prosecutor agreed to arrange transport,” according to the Supreme Court opinion.

The trial was set for October 2019, but the state moved to delay to due to a conflicting trial commitment, and the trial was moved to January 2020, according to court documents.

Allery remained in the county jail and before the trial, his counsel requested another mental health evaluation and a private evaluator deemed him unfit to proceed, according to court documents.

The court ordered him back to MSH, where staff “described Allery at the time of his readmission as thin, pale, hyperverbal, perseverative, and delusional. Evaluators described how Allery’s condition had deteriorated during his six months in jail, in part due to his not taking his prescribed psychiatric medication. Allery was prescribed a new
psychiatric medication and was provided treatment,” according to court documents.

By April 2020, MSH evaluators found Allery fit again, but “strongly urged” the court to keep Allery at MSH until his court date and the court agreed, but his trial was moved to August and then finally October 2020.

“These continuances were for various reasons, such as prosecutorial military leave, evidentiary disputes, and a COVID lockdown at the jail preventing transport. After the court granted a continuance to August 31, Allery moved to dismiss for lack of a speedy trial. The parties briefed the motion, and it remained pending,” according to court documents.

After the October trial, a jury found Allery guilty of assault with a weapon and the court sent him to MSH to await sentencing, which was in February 2021.

MSH evaluators and the pre-sentencing report recommended Allery be committed to the Department of Public Health and Human Services, with an initial placement at the MSH forensic facility and the judge committed Allery to Montana Hospital-Galen, the site of MSH’s forensic facility, to serve a 20-year term, with 10 years suspended, according to court documents.

The same day as the sentencing, Parker addressed Allery’s motion to dismiss for lack of speedy trial.

The court found a 1,179-day delay, of which more than 800 were institutional delay.

“The court appeared to find no explicit objections by Allery to the delay but did note that Allery had ‘expressed feelings of anxiety related to the delay.’ Balancing these various findings, the court concluded that Allery’s right to a speedy trial
was not violated,” according to court documents.

Parker’s order to dismiss Allery’s speedy trial motion did not mention his “explicit complaints about the delay he
experienced. Allery wrote numerous pro se letters invoking his speedy trial right and voiced his displeasure with the delay to MSH evaluators. Those letters and reports are in the District Court record. Allery also asserted his right by moving to dismiss. The District Court erred when it failed to assign weight to this factor. Given Allery’s vigilance about the length of time it was taking to get to trial, we conclude that this factor weighs in Allery’s favor,” the Supreme Court order states on one of the four factors in balancing speedy trial decisions.

Justice Beth Baker delivered the court’s opinion and wrote that “Allery experienced more than two years and two months of institutional delay. He remained detained for more than three years, spending much of this time in jail pending evaluation or decompensating when he was prematurely returned there to free up MSH bedspace. Allery did not cause the delays and he made clear his desire to be brought to trial. Allery’s long wait and deterioration in a facility not ‘suitable’ or ‘appropriate’ for mental health evaluation or treatment—due to systemic institutional problems—failed the government’s constitutional obligation. We conclude, on balance, that Allery did not receive his guaranteed right to a speedy trial.”