Montana Supreme Court upholds local case on jury selection issues
The Montana Supreme Court upheld another local district court order related to jury selection issues.
Felicia Hinkle appealed her sentencing order and judgment from Judge Elizabeth Best after a jury found her guilty of criminal possession of dangerous drugs and paraphernalia.
In her appeal, she challenged Best’s denial of her motion to discharge the jury panel without a hearing.
The Montana Supreme Court issued an opinion March 3, finding Best did not err by denying the motion without a hearing.
Hinkle was found with illegal drugs and drug paraphernalia at her home in April 2022.
She was charged with criminal possession of drugs and paraphernalia and her trial was set for August 2023.
The day before her trial was scheduled to begin there was an emergency hearing in district court regarding the process to empanel the jury.
Best vacated the trial because “it was undisputed that several serious errors in providing notice to jurors and, therefore, in empaneling the jurors have occurred in Cascade County.”
Best directed the clerk of court and sheriff to follow detailed instructions for empaneling jurors for future trials and rescheduled Hinkle’s trial for November 2023, according to the Montana Supreme Court’s decision.
About a week before her trial was set to begin, Hinkle filed a petition to discharge the jury because two people on the jury poll list had moved out of Cascade County. She requested a hearing on her motion.
Best denied the motion without a hearing, nothing that the instructions outlined in its earlier order had been completed by mid-October 2023 and a hearing on the modified process had been conducted in Judge John Kutzman’s court in another case. In that hearing, Kutzman determined that the clerk and sheriff had substantially complied with the law. Best reasoned it was not necessary to review the same information concerning the jury pool, which was the same for Hinkle’s case, according to the high court’s decision.
In her order denying Hinkle’s motion, Best wrote that the statutory process results in a two-year old list of potential jurors with “the predictable incidental result that some of the citizens on the list will have moved before the clerk receives the list,” from which individual case panels are drawn, according to the Montana Supreme Court’s decision.
That lag is predictable, but a “non-prejudicial and insubstantial consequence of the process of collecting names by the Secretary of State. However, the court is satisfied that the process used to identify the large pool of jurors for
the term…substantially complied with relevant statutes. The court is further satisfied that the panel of potential trial jurors for this case was drawn in accordance with statutory requirements,” Best wrote in her 2023 order denying Hinkle’s motion.
Hinkle was convicted on the drug charges after a November 2023 jury trial.
Several other defendants appealed their cases to the Montana Supreme Court in recent years, relying on jury issues in Hinkle.
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In Hinkle, Justice Jim Rice, writing the court’s opinion, wrote that an objection to the jury panel selection process must be raised by a motion to discharge the panel in writing and supported by an affidavit of facts supporting the panel was improperly selected or drawn. If the motion has facts showing the process was improper, it’s the court’s “duty” to conduct a hearing, under state law.
A person who isn’t a resident for at least 30 days of the county in which they are called for jury duty cannot serve on a jury and the clerk must remove their name from the jury list if they have permanently move away, under statute.
The Montana Supreme Court decided a similar case in March 2025, finding “we are not required to ‘reverse every case where a violation occurs in the statutory process governing the formation of a trial jury.’ Rather, we apply a ‘substantial compliance’ standard, which requires reversal only “if the lack of compliance affects the randomness and objectivity of the jury pool selection,” Rice wrote.
A substantial failure impacts a defendant’s right to a fair and impartial jury, but technical departures from the statutes and violations that don’t threaten random selection and objective disqualification aren’t substantial failure to comply, Rice wrote.
Substantial compliance was applied by Kutzman in a case that preceded Hinkle’s and also in Hinkle, Rice wrote.
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Hinkle argued that her motion to discharge the jury required a hearing because the inclusion of people who had moved from Cascade County was “not a minor procedural defect but an alleged structural error affecting the fundamental integrity of jury selection.”
Hinkle argues that the case in Kutzman’s court had different jury summons issues.
The prosecution argued that Hinkle didn’t provide facts showing the jury had been selected improperly and state law doesn’t prohibit a person who has moved out of county from being included in the annual jury pool from which jury panels are drawn, according to court documents.
Best determined that the jury pool including two people who had moved out of Cascade County was a “predictable but non-prejudicial and insubstantial consequence of the process of collecting names,” and that the process “substantially complied with relevant statutes,” according to court documents.
The Montana Supreme Court justices agreed with Best that Hinkle’s objection didn’t rise to a substantial failure impacting her right to a fair and impartial jury.
The two people who had moved didn’t serve on the jury or participate in the selection process, Rice wrote, finding that “base on the allegations set forth in the motion, the district court did not err by failing to hold a hearing.”
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In April 2025, 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 in 2025.
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.
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, 2025 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, 2025 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.
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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 non-responders were not certified by the clerk of court to the sheriff, and the sheriff did not personally serve non-responders.’ 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 non-responders 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 non-responders would advance the goal of ensuring a random selection process,” the court ruled in Kerr.
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In the Hillious decision, the Montana Supreme Court found that there was no “assurance that the sheriff could affect service on non-responders 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 non-responders 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 non-responders 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.”
