Trial in Bromgard's Suit Against County Will Wait a Year

March 13, 2008

By Clair Johnson

The Billings Gazette- Billings, Montana

Former Billings resident Jimmy Bromgard, who spent more than 15 years in prison for a crime he didn't commit, has a new trial date: March 2, 2009.

The jury trial this time is to hear Bromgard's claim against Yellowstone County. Bromgard is suing the county in federal court, claiming that it violated his constitutional rights to effective legal representation at his rape trial 21 years ago.

U.S. District Judge Richard Cebull this week set the trial date and scheduled seven days for the case. A panel of eight jurors, including two alternates, will hear the case, according to a scheduling order filed Tuesday. A civil trial does not require 12 jurors, but a verdict must be unanimous.

This is the first trial date in the civil rights case that was filed in 2004. Bromgard sued the county, along with Commissioners John Ostlund, Bill Kennedy and Jim Reno; the state of Montana; Mike Greely, former attorney general; and Arnold Melnikoff, former state crime lab director, alleging violations of his constitutional rights.

Bromgard, 39, who now lives in Kalispell, sought $16.5 million in damages. Bromgard was 19 in 1987 when a jury convicted him a raping an 8-year-old girl in her bedroom. A judge sentenced him to 40 years in prison. But in 2002, Bromgard was cleared and was released after DNA testing, which was not available at the time of his trial, found that he did not commit the crime.

The DNA testing was done by the Innocence Project, a New York advocacy group that works to exonerate wrongfully convicted criminal defendants.

In January, Bromgard settled with the state defendants for $3.5 million, which was the largest amount the state has ever paid to settle a civil rights case.

Bromgard and the county defendants have been unable to reach a settlement after several mediation sessions. He claims that the county failed to properly hire and supervise lawyers appointed to represent indigent defendants. Bromgard was represented by John Adams, a court-appointed attorney who has since died. Adams failed to file an appeal, gave no opening statement and called few witnesses.

Yellowstone County maintains that under the system at the time, state district judges hired and supervised attorneys for indigent defendants. The county's only role was to pay the attorneys.

Bromgard's lawyers, Peter Neufeld of the Innocence Project and Helena attorney Ron Waterman, and the county's attorneys had been gearing up for a trial, possibly in May. But a heavy criminal calendar and scheduling conflicts pushed back the trial until next year, they said. The parties met with the judge in a scheduling conference last Friday.

Although disappointed with having a trial date so far away, Waterman said he understood the difficulty facing the judge.

"The trial setting is really a reflection of how busy the courts are," he said. "You have to accept the reality. He was very generous in giving us seven days of trial time. We're comfortable with seven days."

The Speedy Trial Act requires that criminal defendants to go to trial within 70 days of their first appearance. Days can be excluded from the speedy trial clock with the defendant's consent and the judge's approval. Civil cases do not fall under the speedy trial deadlines.

Deputy County Attorney Kevin Gillen said the March 2009 date gives the county more time to prepare.

"Absent something strange happening in the criminal world, yeah, we will go," he said. "I think we can all live with it."

Although the case appears to be headed to trial, neither side ruled out a settlement.

"Certainly, there's always going to be opportunity," Waterman said. But, he added, there's "no active settlement discussion going on."

Gillen said, "Peter (Neufeld) hasn't invited me to the Catskills to talk about it, but I wouldn't hang down the phone."