Montana Judge clears Yellowstone County in wrongful-conviction lawsuit

A multimillion-dollar lawsuit filed against Yellowstone County by a former Billings resident who spent more than 15 years in prison for a crime he did not commit was dismissed today by U.S. District Judge Richard Cebull. The Billings judge ruled that the state, not the county, was responsible for providing a competent defense for Jimmy Bromgard at his 1987 rape trial. The state has already settled with Bromgard for $3.5 million, the largest amount the state has ever paid to settle a civil rights case.

In an 11-page order, Cebull concluded that state district judges, not the county, controlled court-appointed counsel in Bromgard's case. "The judiciary selected the attorneys, set their salaries, supervised their work and removed court-appointed attorneys when necessary," Cebull wrote.

His order said Bromgard was incorrect in arguing that the state had delegated to the county the responsibility of implementing U.S. Supreme Court requirements that indigent defendants be provided an attorney.

Bromgard, 39, now lives in Kalispell. He was convicted of raping an 8-year-old girl in her bedroom, largely based on hair evidence analyzed by former state crime lab director Arnold Melnikoff. But DNA testing not available at the time of his conviction cleared Bromgard of the crime in 2002, and Melnikoff's work has since been discredited.

Bromgard sued for $16.5 million in damages, naming the state and county as defendants. In his case against the county, Bromgard maintained that the county failed to properly hire and supervise lawyers appointed to represent indigent defendants. Bromgard was represented by the late John Adams, who failed to file an appeal, gave no opening statement and called few witnesses.

Dan Schwartz, chief deputy county attorney, said a statement from the Yellowstone County Attorney's office would be issued this afternoon.

Original report here

More background (from 2007):

Montana Attorney General Mike McGrath is getting knocked around for statements he made recently in the high-profile case of Jimmy Ray Bromgard, who was released from prison in 2002 after DNA tests exonerated him in a Billings rape case. Last last month, the Chicago Tribune ran a withering article in which forensic and legal experts castigated McGrath for suggesting, under oath, that Bromgard may not be innocent despite the DNA evidence. The statements were made during a deposition of McGrath last fall by lawyers for Bromgard, who is suing the state and Yellowstone County for damages because Bromgard was wrongly imprisoned for 15 years.

Yet while the news coverage focused on McGrath's statements about the case, much more of the deposition focuses on something else: whether the state, under McGrath's direction, adequately investigated the questionable work of former state crime lab analyst Arnold Melnikoff. It was Melnikoff's testimony on hair comparisons that helped convict Bromgard in 1987 - testimony later described by a panel of national forensic experts as "completely contrary to generally accepted scientific principles."

Melnikoff left Montana's crime lab in 1989 and went to work for the Washington State Patrol's crime lab. In the wake of revelations about the Bromgard case in 2002, Washington state officials audited Melnikoff's work there and found errors in 30 of the 100 cases they examined. Washington fired Melnikoff in 2004, citing his "incompetent and inaccurate" testimony in yet another Montana rape case in 1990, involving hair and blood analysis that helped lead to the conviction of Paul Kordonowy. Kordonowy was exonerated of that crime by DNA evidence in 2003, although he remains in prison on a separate rape conviction.

Melnikoff also did hair analysis in yet another Montana criminal case since called into question: the murder conviction of Barry Beach, who says he's innocent in the 1979 killing of Kim Nees at Poplar. Beach's request for clemency was heard last week before the state Board of Pardons and Parole. Melnikoff identified a pubic hair found on the victim's sweater as belonging to Beach. Melnikoff's analysis was never admitted as evidence at Beach's trial, but it was mentioned at trial by the prosecutor, Marc Racicot, who was later elected attorney general and governor.

After the Bromgard exoneration in 2002, McGrath oversaw an investigation of Melnikoff's Montana crime lab work from the 1980s and late 1970s. The state crime lab is part of the state Justice Department, which McGrath leads as attorney general. Attorneys for Bromgard, including Peter Neufeld, co-director of the New York-based Innocence Project, have criticized McGrath for conducting what they see as an inadequate, limited investigation.

In the Sept. 29 deposition, McGrath, under questioning by Neufeld, attempted to explain why he declined to hire independent, outside specialists to direct the investigation and why his office scrutinized only Melnikoff's hair analysis cases and not other work. The investigation also did not examine potential effects of Melnikoff's training of other crime lab workers, did not scrutinize cases where defendants had pleaded guilty, didn't re-examine the hair samples analyzed by Melnikoff, and didn't try to find the "root cause" enabling Melnikoff to repeatedly provide testimony and analyses later found to be seriously flawed.

"What was your reason for rejecting the recommendation of the peer review committee (of national forensic experts) with respect to bringing in outside experts?" Neufeld asked McGrath at one point. "I didn't think that any purpose would be served," said McGrath, who is now running for chief justice of the Montana Supreme Court. "It's also a very expensive process." "Did you make any inquiry as to what the cost would be of bringing in one or more experts to be brought in?" Neufeld asked. "No," McGrath replied.

"But nevertheless, without doing any research, and getting any numbers, or asking any experts what they would charge, you concluded it would be too expensive; is that a fair statement?" "That was one of the factors that I considered," said McGrath.

As McGrath went on to explain, his office focused on whether Melnikoff's hair analysis may have led to wrongly convicting someone. The office, with the help of crime lab personnel, identified about 250 criminal cases where Melnikoff had "generated a report." The review then zeroed in on some two dozen cases in which the defendant was in prison and Melnikoff's hair report had a "positive association" linking the defendant to the victim of the crime - just as he had done with Bromgard, erroneously. Melnikoff also testified in some of these cases. McGrath said he did not scrutinize 13 of these cases where the suspect pleaded guilty.

Ultimately, McGrath, with the help of investigators and staff in his office, determined that Melnikoff's testimony was not the deciding factor in the 12 cases where someone was convicted and sent to prison. "None of the individuals listed in the attached report were wrongly convicted based on the work or testimony of Arnold Melnikoff," he said in a January 2004 memo on the review.

McGrath rejected a request by Neufeld and the Innocence Project to audit all of Melnikoff's work with an independent "oversight committee" and outside forensic experts - regardless of whether the case involved hair analysis or whether the suspect had pleaded guilty or was in prison. The Innocence Project later asked the Montana Supreme Court to order an independent, more sweeping investigation, but the court declined in 2004, saying it didn't have authority to do so.

The Innocence Project notified Washington state in 2002 of Melnikoff's errors in Montana and urged a review of his work. The Washington State Patrol responded by auditing 100 of 1,300 cases on which Melnikoff had worked from 1998 to 2002. Like Montana, it did an internal review, without calling in outside experts.

However, unlike Montana, the Washington State Patrol did not publicize its 2003 audit findings. It took an investigative report by a Seattle newspaper a year later to bring the findings to light. Prosecutors and defense attorneys involved in the cases where Melnikoff's work was questioned had not been informed of the findings.

Original report here



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