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The Montana Innocence Project weighed in on the case surrounding Yellowstone County defendants not being timely assigned representation, by filing an amicus brief in support of the constitutional right to effective assistance of counsel. 

An amicus brief is a document provided to a court that provides additional information to consider when making their decision outside of the petitioner and respondent’s positions. MTIP filed its brief following the Office of the State Public Defender (OPD) challenging a district court judge’s authority to sanction the agency for not complying with the Sixth Amendment. 

Last September, District Court Judge Donald Harris held OPD and its State Director, Rhonda Lindquist, in contempt of court upon learning that 650 defendants were not assigned legal representation in Yellowstone County. Based on the Sixth Amendment right to effective assistance of counsel, he fined the agency $15,500 and ordered public defenders to be assigned to those defendants within three days. 

In February, Judge Harris held the OPD and Lindquist in contempt for a second time for failing to assign representation to 17 defendants. In March, the OPD and Lindquist asked the Montana Supreme Court to consider whether Judge Harris had the authority to issue these sanctions. 

OPD’s argument is that, due to a lack of funding to retain attorneys, providing representation in a timely manner is impossible. In response, Judge Harris argued that the district court can hold litigants in contempt when they are violating constitutional rights and that the OPD has not provided evidence proving a lack of funding is impeding their ability to assign timely representation–emphasizing that a number of reasons like poor management or a bad work environment could be contributing factors. 

“When the Montana Innocence Project tracked these arguments, it seemed like there was a significant risk that the substantive question, ‘what’s happening to those who are being accused of crimes,’ is being lost in the mix,” said MTIP Board Chair Randy Bishop, who authored the amicus brief. “So the Executive Committee decided upon consideration of these things that it would be perhaps helpful to the Montana Supreme Court to remember in the midst of this narrow legal issue…that there are human beings who’ve been accused of crimes who are entitled to assistance of counsel, and their interests are the ones that are at issue, and their harm is the problem.”

In its amicus brief, MTIP did not follow the tradition of supporting only one side. While the brief acknowledges that the district court was within its power to issue contempt citations in response to constitutional violations, the broader position is that the current system must be remediated immediately.

“We chose not to come in on behalf of either side, and in some respects, we chose to come in on behalf of both sides,” Bishop said. “We felt that it was important that the Montana Supreme Court had someone painting a broader picture for them to place the current events in context.”

From MTIP’s perspective, the broader picture is that since 1989, nearly 3,000 people have been wrongfully convicted and exonerated–around 200 of those from death row–and ineffective assistance of counsel is the leading cause. 

Ineffective assistance of counsel was the basis for overturning MTIP’s most recently freed client Dave Wilkes’ conviction in 2018, and it is a contributing factor to two wrongful convictions cases currently under litigation–Katie Garding and Aaron Oliphant

“But before you even get there, as was argued in the brief itself, you have to have counsel,” said MTIP Executive Director Amy Sings In The Timber. “And not having counsel, is by definition, ineffective assistance of counsel.”

Sings In The Timber said this issue is particularly concerning in light of the recent United States Supreme Court decision last month in Shinn v. Ramirez. The court ruled that ineffective assistance of counsel claims may no longer be presented in federal court if not first presented in state courts. This decision will leave thousands of people fighting for their innocence without a court to hear their evidence. 

“We’ve now got a court saying to us that ineffective assistance of counsel, if you are to believe the majority, is exhausting the legal system in a way that is not in keeping with the intent,” Sings In The Timer said. “But I don’t know how you can argue the constitutionality of having counsel appointed.”

This issue does not only impact defendants’ efforts to prove innocence at trial but, notably, produces an environment conducive to false confessions. When representation is not timely assigned to indigent defendants who cannot afford bail, they may be incentivized to plead guilty to crimes they did not commit to get time served instead of risking more time incarcerated.

“They’ve already been incarcerated or detained for a longer period of time than they might have been sentenced to by the time they are finally getting counsel,” Bishop said. “…Something that perhaps they didn’t do, but as a practical matter, it’s better to get out of jail than to sit there and fight for your innocence, even when you are innocent.”

With these issues in mind, MTIP’s amicus brief begins with an analysis of how denying defendants timely representation violates constitutional rights and directly impacts investigations, opportunities to make an early plea, and other important legal avenues that are impossible without an attorney. The brief goes on to discuss the origins of the public defender system in Montana and how it was clearly articulated that the system needed to be adequately funded. It then discusses how the current system where indigent defendants are being denied representation for an average of 53 days in Yellowstone County is a pervasive and structural failure.

“And when a pervasive and structural failure is at issue, then that goes to the very heart of the constitutional challenge,” Bishop said. “Our point in emphasizing that was we wanted to bring the focus back to the fundamental problem, not the immediate dispute between the district court and OPD.”

The brief concludes with an argument that Montana should recognize a new category of litigation: prospective claims of ineffective assistance of counsel. This means that instead of waiting until after a conviction is finalized to argue wrongful conviction on the basis of ineffective assistance of counsel that someone could proactively argue they are not receiving constitutionally guaranteed representation and that charges should be dismissed. 

“What we argued was if you really want to directly address the wrong that is being done, don’t talk about contempt authority, don’t talk about state funding, talk about things that directly address the problem,” Bishop said. “Let’s let those who do not get effective assistance of counsel petition for release early in advance prior to conviction. And say I didn’t get any counsel, so I have by definition had ineffective counsel. Dismiss these charges.”

Allowing for prospective claims of ineffective assistance of counsel is not a novel idea. In fact, several states, including Idaho, consider such claims. 

The bottom-line position of the brief is that the court should affirm the district court’s contempt orders based on the unconstitutionality of not providing timely representation. 

“For starters, the Project hopes that will occur because if it doesn’t then the whole thing sort of ends up going nowhere, and OPD will continue business as usual,” Bishop said. 

But more importantly, MTIP hopes for real change in the way that criminal cases of indigent defendants are handled in Montana.

“At a minimum, we want the court to recognize that big changes will come,” Sings In The Timber said. “This system is not working the way that it has been. It’s not working for indigent defendants. It’s not working for defendants period. Those big changes have to come, and better y’all get there on your own. It doesn’t have to be a moment of forced reckoning, but I think so rarely do things happen without a moment of forced reckoning.”