Age at the date of crime: 21
County of Conviction: Missoula County
Convicted of: Negligent Vehicular Homicide and Leaving the Scene of an Accident
Sentence: 40 years
Years Served: 8 years and counting
Cost of Wrongful Incarceration: $264,000 and counting (in 2015 dollars)
In the early morning hours of January 1, 2008, Bronson Parsons and Daniel Barry were walking along the right-hand shoulder of Highway 200 in East Missoula, MT. Parsons was struck and killed by a hit-and-run vehicle. Both Parsons and Barry dropped the beer cans they were holding. Within minutes, Montana Highway Patrolman Novak arrived at the scene. Based on the location of the beer cans and a set of tire tracks on the shoulder of the road, Novak determined the approximate point of impact. Parsons’ body came to rest some 93 feet from that point.
Ten hours later Highway Patrolman Hader stopped Katie Garding near the scene of the incident, because she had a cracked windshield on her black 1994 Chevy Blazer. The vehicle had a unique, aftermarket steel bumper protruding from the front end. Because the vehicle had no damage to its front end, Hader believed that it could not have struck Parsons. However, he cited Ms. Garding for driving without a license and arrested her boyfriend, James Bordeaux, who was also in the vehicle, on an out-of-state warrant. The hit-and-run case went cold.
Nearly one year later, Bordeaux was incarcerated in Missoula on a burglary charge. Because of prior convictions, Bordeaux faced Persistent Felony Offender designation. Hader contacted Bordeaux, who now, for the first time, advised that he was a passenger in Ms. Garding’s vehicle when it struck Parsons. Although Bordeaux was incorrect in many of his assertions (for example, he stated that Ms. Garding’s vehicle was traveling the wrong way, and his claims re: the time frames involved were incorrect), the State took another look at Ms. Garding’s possible culpability. In exchange for providing testimony, the State offered Bordeaux a plea deal whereby he would testify against Ms. Garding and plead guilty to the burglary, and in return, the State would recommend that he receive a five-year suspended sentence. While the possible PFO designation was not discussed or mentioned in the State’s written plea agreement, the designation was dismissed. Obtaining Bordeaux’s cooperation, the State then charged Ms. Garding with Parsons’ death.
The case went to trial in June 2011. Ms. Garding was represented by a public defender. Neither the State nor the defense called an accident reconstruction expert to testify. Ms. Garding was found guilty of Negligent Vehicular Homicide and Leaving the Scene of an Accident. In 2013 her conviction was affirmed by the Montana Supreme. MTIP then began its investigation into the case.
On September 15, 2015, MTIP filed Petition for Post-conviction Relief, later amended, alleging the prosecution failed to turn over key evidence in violation of Brady v. Maryland (including photographs of a 2005 crash that had similarities to the case in question), ineffective assistance of counsel (Streano admitted her failure to call a reconstructionist was negligence), and newly discovered evidence (accident reconstruction evaluations).
Judge Larson refused to grant relief in the case. Judge Larson adopted many of the State’s legal conclusions on the Brady issue, including conclusions on “materiality.” Judge Larson stated that the State has no obligation to assist the defense in their investigation and concluded that the 2005 photos were not material to the case. He stated that since the photos did not include the size or speed of the car, and the striking manner, there was no way to determine the exculpatory value of the photos and thus their materiality. Judge Larson did not agree with Ms. Garding that the case of the 2005 photos included a vehicle striking a pedestrian at a high rate of speed. Judge Larson concluded that Ms. Garding had the opportunity to provide evidence that the victim Parsons’ head hit the windshield of the striking vehicle, but the analysis by the lab of the glass at the scene refuted Ms. Garding’s assertion that the 2005 photos were relevant, material and exculpatory. Judge Larson concluded that since the photos only included x-ray and photographs of the 2005 victim and did not include medical analysis of the internal tearing of muscle of the 2005 victim, the two cases could not be compared to determine the similarities of the striking vehicles. Judge Larson then found that since the two could not be compared, the 2005 photos would not show that Ms. Garding’s vehicle was not involved in Mr. Parsons death. For these reasons, Judge Larson found that the disclosure of the 2005 photos did not produce a reasonable probability of a different outcome at trial and therefore did not rise to a Brady violation.
As with his legal conclusions in the Brady section, Judge Larson adopted many of the legal opinions that were present in the conclusions submitted by the State while dismissing the conclusions set forth by Ms. Garding. This resulted in 24 legal conclusions that represented a severe restriction on the applicability of a cognizable IAC claim: including the “heavy burden” on Ms. Garding; the need to avoid retrospective analysis and the elimination of the distortion of hindsight; the importance of attorneys’ ability to make strategic choices; and the courts’ wide deference to counsel’s choices in presenting their case. Judge Larson repeatedly cited Harrington v. Richter, 562 U.S. 86 (2011), which set forth certain standards for when counsel might employ experts. Utilizing Harrington, Judge Larson gave great deference to counsel’s “strategic considerations.” Judge Larson set the hurdle quite high for Ms. Garding. Judge Larson stated that Ms. Garding must show that Ms. Streano’s performance must have sufficiently undermined the adversarial process, and further she must show that had Ms. Streano employed the use of expert witnesses, there was a substantial likelihood of a different outcome at trial.
In applying the facts to the above law, Judge Larson argued that Ms. Streano was in fact effective for a number of reasons. First, he noted that Ms. Streano had the opportunity to utilize the services of co-counsel, but chose not to. Next Judge Larson turned to Ms. Streano’s meetings with others in her office where she could have asked for assistance. Judge Larson all but dismissed the testimony of Ms. Garding’s experts David Ness and Wendy Holton, who both stated that Ms. Streano’s failure to consult experts was ineffective. Judge Larson did not find it significant that the State did not call any witness who testified that Ms. Streano was in fact effective. Judge Larson ruled that Ms. Streano was effective due to her competent cross-examination of the State’s witnesses, and that the decision to not call experts was part of her overall strategy. Finally, Judge Larson found the testimony of Highway Patrolman Smart more credible that the testimony of Ms. Garding’s three accident reconstruction experts.
MTIP has filed a Notice of Appeal of Judge Larson’s ruling. We believe Judge Larson made several critical errors in his ruling, including his granting of the State’s pre-hearing motions; his incorrect application of controlling legal standards to the issues presented; and his incomplete and incorrect application of the facts to those standards. The appeal is pending before the Montana Supreme Court.