MTIP client Kelly Worthan details waiting game behind pursing innocence

MTIP client Kelly Worthan photographed at Montana State Prison in 2022
(Photo by Sarah Mosquera)

Movies like “Just Mercy” and “Brian Banks” tell humanizing stories behind legal battles to free innocent people. They highlight the social problems that perpetuate wrongful accusations. The court scenes demonstrate how easily wrongful convictions can occur and how hard they are to undo. But as we take in these stories, it is important to remember that, as Montana Innocence Project Legal Director Caiti Carpenter puts it: “It’s not as simple as the two-hour movie would make you believe. It’s actually years of waiting that person will never get back.” 

On average, it takes 6-7 years to free an innocent person in America once they begin pursuing post-conviction relief—if they realize freedom at all. A large chunk of this time is spent waiting for the judge to read the Petition for Post-Conviction Relief and make a decision. In fact, MTIP clients spend an average of 259 days waiting for the first order in their case. They spend those days wrongfully imprisoned, away from family support, and often feeling disempowered because there is nothing to do but wait. 

Unlike when someone initially faces a criminal charge, a wrongfully convicted person does not have speedy trial rights. The court is not required to make a decision within a certain period of time. Because of this, Carpenter said judges are more apt to push post-conviction cases to the end of their to-do lists. 

“I think it’s triaging,” Carpenter said. “I think that courts often deal with a lot of emergent situations–restraining orders, protective orders, criminal cases, people who are awaiting trial who have speedy trial rights, people that are trying to get divorces. You know, these sort of things often are assessed as being more important than someone who has already been convicted and who is incarcerated, so we know where they are.”

Carpenter does not believe courts always have bad intentions but rather aim to maintain judicial efficiency in an overburdened criminal legal system. 

Another explanation for long wait times is the lack of incentive to acknowledge and remediate wrongful convictions.

“In other professions, they build in human error,” Carpenter said. “And they expect it. There’s this book called the ‘Checklist Manifesto,’ and it was created by pilots who basically recognized that maybe they weren’t checking everything or doing all of it. So they have a checklist before they take off. Did we do this? Did we do that? So that they try to do better every single time, and it’s encouraging people to come forward and say, ‘No, I didn’t do that.’ In the legal profession, we don’t have a similar thing. It really is a community with no incentives to come forward when there is a failure. And that also creates an environment where wrongful convictions thrive because it’s shame, and shame very much grows in darkness.”

Kelly Worthan spent the longest time waiting of any MTIP client for a district court ruling on his Petition for Post-Conviction Relief. MTIP filed in April 2020 and received the ruling in June 2022. 

“It’s a horrible feeling,” Kelly said. “You’re missing everything, and you’re just sitting here in limbo. Life is going by you, and you’re just wishing that they would hurry up. It’s so hard to explain that feeling. It’s terrible, but it’s something we have to do. You just hope that they’re using the time to take everything into consideration. But you never know.”

Kelly said waiting for an answer produces mixed feelings because, without an answer, he can still have hope for a positive outcome in his case. Going to bed and waking up are the hardest parts of his days because that’s when these difficult feelings resurface. 

“You go to bed like, ‘I’m still here,’” Kelly said. “But then you wake up and are like, ‘I haven’t got a bad decision yet, so I’ll make the most of this day.’ You know, I’ll do what I can. It’s not final yet, so that keeps you going. But you also want the decision, so you can just get on with it. It’s a rollercoaster of emotions. The worst time for me is going to bed and waking up because that’s when things flood. It’s a very hard thing to do, and I don’t wish it upon anybody. It’s been very taxing emotionally and physically.”

When Kelly’s petition was approaching two years with no decision, Carpenter presented Kelly with a unique approach to inspire movement on his case–requesting that the court assign a special master, which would mean another entity would review the petition. Choosing this route was somewhat of a gamble because the mechanism is not often used. They were unsure how the court would respond. 

“We kept trying to effectuate something to happen,” Carpenter said. “We did notices. We tried to communicate with the court in the most respectful possible way to say, ‘Hey, please take a look at this. Hey, it’s been a while.’ It’s the longest of the cases we’ve taken on as far as waiting for a decision goes. You’re in this delicate dance of trying not to piss off the court but also giving the court grace and opportunity to see that it hasn’t ruled for a long time.”

Although it felt risky, Kelly ultimately decided to move forward with the special master request.

“I wanted the judge to go, ‘Hey, this person’s serious,” Kelly said. “‘They’re thinking outside the box. They’re doing everything they can.’ In my mind, I was hoping they would look at that and realize how committed we are to this and go, ‘I need to take a serious look at this.’ However, I think it went the other way, and I knew it could do that too. But that’s why I chose that. To demonstrate that, I’m wanting some answers. I want this to get done.”

Kelly’s petition sat on the court’s docket for two years with no movement. The day after Carpenter requested appointment of a special master, the court denied Kelly’s petition and motion for a new trial. MTIP immediately began the appeal process. Kelly is waiting again. 

“It’s really hard, and it’s really unfair; yet, we tell every client, ‘Be patient,’” Carpenter said. “‘One step at a time. Being nervous won’t help the situation. If we get a bad outcome, we’ll hit it then.’ All of these statements, while true, are in no way supportive or reassuring to someone who is missing birthdays, missing a family member going through chemo. That’s not fair. And I’m just telling them to sit tight.”

Kelly looks forward to visits with MTIP, but because of the excruciating waiting game, anxiety surrounds these moments.

“I get shaky,” Kelly said. “I get nervous. Is this going to be the answer? Are they coming here to tell you the bad news, or are they coming here to tell you the good news? Or are they not going to tell you any news? All these thoughts race through your mind. If it’s bad, how am I going to react? You’re rehearsing all the scenarios in your head before they get there, so you’re just a bundle of nerves. Every time I know Caiti’s coming to see me, or I get a notice she’s coming to see me, it’s just tons of emotions. I enjoy seeing you all when you do come. That’s one thing I do look forward to, but it’s the news. I just don’t know what it’s going to be.”

Carpenter and Kelly’s conversation after the special master request was bad news, followed by looking forward to the next steps in his case. But despite the disappointing result, Kelly stands by his decision to request the special master because, in doing so, he remained true to himself. 

MTIP client Kelly Worthan photographed at Montana State Prison in 2022 (Photo by Sarah Mosquera)

“I’m one of them type of people that it’s all or nothing,” Kelly said. “I don’t want to compromise. I don’t want to compromise because I’ve lost out on so much. And I feel like I’ve done that a lot. I ain’t going to do it no more. The way I look at it, I’m at rock bottom now. There’s only two places to go: straight up or sideways.”

Carpenter identified some possible reforms to this issue: passing laws that clarify the post-conviction relief process in Montana; promoting a more hospitable environment to identify when mistakes have been made in a case and incentivizing legal practitioners to rectify wrongful convictions; and providing more resources to the judiciary as a whole to give proper attention to each person seeking intervention. 

While there are many reasons why a court would take upwards of 200 days to review an innocence case, those reasons do not make waiting while being wrongfully incarcerated any easier. 

“We are at worst ignoring someone who has no business being incarcerated, and it’s inhumane to do so, and at least being oblivious to someone’s suffering,” Carpenter said. 

MTIP is currently appealing the denial of Kelly’s petition to the Montana Supreme Court and will exhaust all possible remedies in an effort to free him. 

“No matter what the outcome is, I’m going to try to make myself a better person,” Kelly said. No matter where I’m at. I’m going to make the most of it. I hope people see that, and I hope I’m able to influence someone’s life–even just one person–in a positive way. And that’s pretty much where I’m at now, and that’s what I want to do. Especially if I get out of here, I want to bring change to someone’s life in a positive way.”