Montana Supreme Court denies requests for new trials over jury summons issues, including two Great Falls cases; bill passed this session to correct process
This week, the Montana Supreme Court upheld the local district court’s order denying a new trial for a local man convicted of deliberate homicide and another convicted of assault with a weapon.
The court also issued a substantial decision in March by denying a request for a new trial from a man convicted of killing his wife in Kalispell. In that case, the defendant argued that the clerk of court didn’t comply with the statutory requirements for assembling his jury panel.
The Montana County Attorneys Association, with the Clerk of Courts Association and the Montana Sheriffs and Peace Officers Association drafted a law change to correct any similar jury issues going forward.
HB194, sponsored by Rep. Amy Regier R-Kalispell, was approved by lawmakers and is awaiting signature by the governor.
Brandon Craft was tried and convicted by a jury in November 2019 of deliberate homicide, tampering with evidence and two different counts of deceptive practices.
Craft was accused of killing his roommate Adam Petzack in February 2016 by shooting him in the back of the head and burying him on his property. Afterward, Craft and his then-wife were accused of selling Petzack’s car for $600 on Craigslist and stealing hundreds of dollars of Petzack’s veterans benefits.
Craft was sentenced in February 2020 to 100 years in prison for the deliberate homicide charge, ten years for the tampering charge, and two concurrent ten-year sentences for the deceptive practices charges.
Craft appealed his sentence to the Montana Supreme Court, which affirmed three of his convictions and reversed one count of deceptive practices related to the sale of the truck for insufficient evidence in 2023.
In February 2024, Craft filed a motion requesting a new trial, arguing that problems discovered with the jury pool process in the summer of 2023 in another criminal case, entitled him to a new trial, according to an April 14 Montana Supreme Court opinion.
In August 2023, local defense attorneys raised issues with the process by which jurors were being called in two criminal trials.
In case in Judge John Kutzman’s court, the defense raised those concerns forcing the trial to be delayed, according to an order from District Court Judge Elizabeth Best.
Errors in jury process slow trials, officials address process change [2023]
Because of the issues calling juries, one criminal trial was vacated and jury trials were halted for about a month in Cascade County.
The vacated trial was eventually held.
The underlying problem stemmed from a 2022 annual convention of Montana district court clerks, during which a now retired Missoula County clerk “advocated a new method for notifying jurors which she had been using. This method involved sending postcards 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 in August 2023.
The district court denied Craft’s request for a new trial on the basis that it was filed four years after his trial and his reliance on 2023 jury pool issues in another criminal trial didn’t constitute newly discovered evidence that those issues existed with the 2019 jury pool from which Craft’s jury was empaneled, according to the state high court’s opinion.
According to a 2023 district court judge’s order regarding the Cascade County jury pool issues, the process change was made sometime in 2022.
Under state law, prosecutors and the defense may investigate the formation of a jury pool and jury panel for a specific case before the trial and up to 30 days thereafter but Craft’s attorneys did not do so, a factor in the district court’s denial of his request for a new trial.
Craft’s attorneys largely relied on a local drug case against Felicia Hinkle, but in that instance, the problems with the jury pool were discovered before the trial started in 2023, causing a delay, but the issue was addressed and the trial conducted.
On Craft’s request for a new trial, the Montana Supreme Court reviewed the case to determine if the district court abused its discretion in denying the motion.
“After reviewing the record, we find the district court did not abuse its discretion in denying Craft a new trial. Craft did not justify a new trial in the interests of justice. Craft did not provide any newly discovered evidence that his jury was improperly empaneled. Rather, using Hinkle as the basis for his assertions, he speculated there was an issue with the formation of his jury and, based on this speculation alone, requested an evidentiary hearing where he could question the clerk of court and sheriff for Cascade County as to their compliance with [state law], during the empaneling of his jury in 2019. Reliance on the abnormalities of the jury panel in Hinkle in 2023 does not constitute substantial evidence that the jury panel in Craft’s trial in 2019 was improperly empaneled,” according to the Montana Supreme Court’s opinion. “After reviewing the record, we find the district court did not abuse its discretion when it did not hold an additional hearing and denied Craft’s motion for a new trial for failing to establish such was required in the interests of justice.”
In an April 15 order, the state’s high court also upheld a district court decision in Richland County to deny a new trial to Cody Johnston who had been tried and convicted by a jury in October 2016 of deliberate homicide.
More than seven years later, in April 2024, Johnston filed a motion for a new trial, relying on the Hinkle case from Cascade County that held the clerk and court and sheriff had improperly notified and served the pool of jurors.
In his motion, Johnston didn’t provide sufficient evidence to support substantial non-compliance for empaneling a jury in his case, according to the ruling.
Rather, in his 2016 case, Johnston was aware some jurors from the pool weren’t present and his counsel alerted the court that of those present, not all had completed their questionnaires, but his counsel was satisfied with letting jurors fill out the questionnaires as they checked in for service,” according to the ruling.
“Thus, Johnston knew at the time of his trial and did not object to the fact that some jurors were not present, and some had not completed their questionnaires—because this information was known at the time of trial, it is not newly discovered evidence that justifies a new trial. If Johnston was aware of jury defects at the time, he should have raised a challenge prior to the trial and immediately investigated further. Johnston’s reliance on abnormalities with jury pools in other jurisdictions cannot suffice as evidence that there was substantial noncompliance with the jury pool in his jurisdiction that affected his trial. As such, the district court did not abuse its discretion when it denied Johnston’s motion for a new trial,” the Montana Supreme Court ruled this week.
In another April 15 order, the Montana Supreme Court upheld the local district court’s decision to deny Jade Kerr’s motion for a new trial.
A jury found the Great Falls man guilty of assault with a weapon after a June 2022 trial. Kerr had stabbed a man outside Ike and Susan’s after an argument over politics, according to local news coverage at the time.
Kerr appealed the conviction in September of 2022, but before filing his opening brief, he filed a motion for a new trial in January 2024, alleging that the Cascade County clerk of court had not complied with Montana’s jury selection statutes in assembling the jury pool for his trial.
The district court judge had ruled that “‘the 2022 jury pool was not formed in compliance with Montana law because nonresponders were not certified by the clerk of court to the sheriff, and the sheriff did not personally serve nonresponders.’ The court nonetheless denied Kerr’s motion for new trial, concluding that the clerk ‘substantially complied with the statute because [the] technical violations did not contravene randomness or choosing the pool…on the basis of objective criteria.'”
In the Kerr opinion, the Montana Supreme Court leaned on it’s March 25 decision denying Bradley Hillious a new trial for the same jury issue.
A jury found Hillious guilty in January 2022 of deliberate homicide in the death of his wife.
Hillious used the same argument of a statutory violation since the clerk had failed to certify the nonresponders list and the sheriff’s failure to personally serve each person under a state law.
The state’s high court found that the failure constituted a technical, but not substantial, statute violation and that it didn’t “threaten the goals of random selection and objective disqualification” of jurors and held that “there is no evidence upon which we can conclude that personal service on nonresponders would advance the goal of ensuring a random selection process,” the court ruled in Kerr.
In the Hillious decision, the Montana Supreme Court found that there was no “assurance that the sheriff could affect service on nonresponders and be successful enough to advance the goal of random selection. Most importantly, Hillious has not established that failure to return juror questionnaires is associated with the exclusion of an identifiable group of persons who are entitled to be included in the pool of potentially qualified jurors but have systematically been excluded based on subjective criteria. Critically, Hillious failed to make any analytical connection between exclusion of nonresponders and exclusion of an identifiable group of persons which would have violated a fair cross-section. Hillious relies solely on the statutory violation to assert a per se rule of reversal and structural error. The nonresponders had already been lawfully served with written notice and the record is devoid of any logical or evidentiary connection which would support a conclusion that following up with personal service would increase the random nature of the selection. It is apparent that the intent of the personal service requirement is to ensure that there are enough jurors present to enable a jury to be selected––not to ensure that every person served must appear.”
The justices also concluded that the statutory error, which has been used as a basis for multiple requests for new trials over the last two years, was “technical and harmless.”
The court ruled that, “Hillious has not demonstrated prejudice by showing that the violation affected the random selection of the jury pool or that jurors were excluded from the pool based on subjective criteria. Hillious, and other defendants pursuing claims related to the instant statutory violation, are attempting to have their convictions reversed without any showing that the statutory error affected their constitutional right to a fair and impartial jury.”
In ruling that the errors by the clerks and sheriffs in multiple counties didn’t prevent the defendants from receiving random, fair and impartial juries, the justices still admonished those officials for the errors.
“Clearly statutory compliance should be encouraged, and it may have been prudent pretrial to vacate and reconstitute jury pools. Clerks charged with the task of executing Montana’s jury selection statutes bear a heavy responsibility in maintaining and assuring the integrity and substance of the jury system. They have the duty and opportunity to ensure that juries will consist of a selection made at random, from representative sources of persons reflecting a normal cross-section of the population. Without strict adherence to the legislatively prescribed jury selection procedures, the purposes of the statute and the defendant’s constitutional rights could be violated,” the court ruled. “However, under substantial compliance review and harmless error analysis, Hillious has failed to demonstrate that the clerk’s failure to comply with statutory procedure resulted in a violation of his right to a fair cross-section of the jury from which he suffered prejudice to his substantial rights.”
