Errors in jury process slow trials, officials address process change

A change in the process for juror questionnaires and summons caused problems for the justice system in Cascade County.

Sheriff Jesse Slaughter said during a Sept. 13 press conference that a high number of people were not responding to the notices, requiring his office to contact those people, slowing the process to empanel juries and slowing trials, extending a defendant’s time in the jail and contributing to overcrowding.

Before 2022, the clerk of court’s practice in Cascade County had been to pull a panel of citizens for an entire year in January and send to potential jurors notices by mail that they had been drawn, with a questionnaire, and a requirement that they return the document to the clerk’s office, in compliance with state law.

The process applies to cases in district court.

There’s a different process for federal, municipal and justice court.

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Sometime in 2022, most district court clerks in Montana attended an annual convention, during which a now retired Missoula County clerk “advocated a new method for notifying jurors which she had been using. This method involved sending post cards to jurors early in the year notifying them that they were selected for the year’s panel, but requesting no immediate action from the recipient,” according to an order from Judge Elizabeth Best, filed on Aug. 22.

The cards might be likened to a “save the date” card for a wedding, Best wrote.

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Later, for scheduled trial dates, about four weeks in advance, individual summonses and questionnaires were mailed to the specific jurors needed on those trial dates. In Cascade County, that included about 200 people for a recent case.

A large number of people did not return the questionnaires, according to county officials.

Tina Henry, Cascade County clerk of court, said that her office receives a list from the state each year of potential jurors. That list usually includes about 15,000 names.

In August, defense attorneys raised issues with the process by which jurors were being called in two criminal trials.

In one case in Judge John Kutzman’s court, the defense raised those concerns forcing the trial to be delayed, according to Best’s order.

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During a hearing, “it was undisputed that several serious errors in providing notice to jurors and, therefore, in empaneling the jurors have occurred in Cascade County. Based on [Tina] Henry’s testimony, it is likely that the faulty method currently employed in this county is also being used elsewhere in Montana,” according to Best’s order.

During the August hearing, Henry testified that a large number of people who were sent summonses and questionnaires didn’t respond. She said her staff sent those names to the sheriff’s office, but in a manner that did not technically meet statutory requirements.

During the August hearing, Slaughter testified that no one had brought the particular state statute to his attention and during the hearing in Kutzman’s court, the judge directed the sheriff’s office to personally serve jurors, finding that three to four efforts at service was “reasonable” under the statute. The law states that the sheriff has to make “reasonable” attempts at service, but doesn’t define what that means. Best wrote in her order that she agreed with Kutzman’s finding of three to four efforts.

As a result, Slaughter said his office spent hundreds of hours serving jury summons.

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Slaughter and Undersheriff Scott Van Dyken said during an August budget meeting with County Commissioners that they’d always had to serve some jury summons but that the number had spiked as a result of the process change.

“It’s a very heavy lift,” Slaughter said during the Sept. 13 press conference.

Henry testified that before the case in question, “the sheriff’s clerical staff complained to her staff about being too busy to personally notify the nonresponding jurors. Thereafter, clerk’s staff stopped asking the sheriff to personally serve jurors,” according to Best’s order.

Henry was also unaware of the statutory requirement to serve a nonresponsive juror before the August trials, according to Best’s order.

Because of the issues calling juries, one criminal trial was vacated and jury trials were halted through Sept. 25 in Cascade County.

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“The court recognizes the difficulty and frustration in complying with this statutory scheme for calling jury panels, which is, at best, Jurassic. It was apparently enacted in 1999, more than two decades ago, just as the internet age was gaining steam. Nevertheless, until the Legislature changes this system, the courts must be careful not to ‘legislate from the bench,'” Best wrote in her order.

Best wrote that the issues with calling a jury constituted a structural error under statute and that the clerk of court’s office had to immediately change the process, which has now reverted to the previous method.

Henry said during the Sept. 13 press conference that her office had issued about 2,000 notices and questionnaires for jury trials from September through December of this year.

Those questionnaires must be returned or the clerk’s office will provide the names of those who haven’t responded to the sheriff’s office, in a manner that complies with state law, and the sheriff’s office must make three to four attempts at service.

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Slaughter said that when people don’t respond to a jury summons, it creates a backlog in the justice system, takes deputies away from public safety work, slows trials, contributes to jail overcrowding and risks trials being canceled on technicalities.

Cascade County Attorney Josh Racki said this county has one of the highest rates of jury trials in the state.

He said those trials can’t happen if people don’t respond to a summons.

Slaughter said his office will get aggressive with getting responses.

He said deputies will call those who haven’t returned a questionnaire and let them know they need to respond.

Slaughter said that if those calls go unanswered or responses still aren’t received, they’ll publish the list of those who haven’t responded.

Judges have the option to hold people in contempt if they don’t respond to a jury summons.

Some judges give a choice between a fine or sitting through a day of hearings when a person doesn’t respond to a jury summons.

Henry said the postcards didn’t get returned as undeliverable the way a notice sent by envelope would be, so that also hampered their ability to find people.

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Racki said he expects litigation in some cases due to the errors in the jury process, but a defendant will have to show that they didn’t get a fair trial as a result.

Racki said that he’d heard from other counties that they were having similar issues with the jury process under the method that Cascade County had been using.

Henry was appointed as the county clerk in November 2019 after the previous clerk resigned.

Henry said during her time, they typically send 15,000 jury notices and questionnaires annually and get 5,000 to 6,000 returned.

The “return is poor,” she said.

For the remaining months of 2023, her office sent 2,000 notices and questionnaires and so far had received about 600 responses.

That means the sheriff’s office has to contact about 1,300 people, she said.

Some have moved and the system hasn’t yet updated, but Henry said people need to do their part.

Jury trials have 12 jurors with one to two alternates, Racki said.

Henry said her office typically calls 150 to 200 people for a civil trial and get about 80 people to show up for jury selecton.

She said they typically call 100 people for a criminal trial and get about 50 to show up for selection, but they’ll call 150-200 for a higher profile criminal case.