QUATMAN & QUATMAN, PC
737 Spokane Ave.
Whitefish, MT 59937
Office: (406) 863-2385
Fax: (406) 863-2385
Attorney for Defendant
IN THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT
IN THE COUNTY OF FLATHEAD, IN THE STATE OF MONTANA
|STATE OF MONTANA,Plaintiff,v.
Cory Robert Franklin,
|Case No: DC-04-15(C)
Honorable Heidi Ulbricht PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
COMES NOW the Defendant, Cory Robert Franklin, by and through the undersigned counsel, Timothy Baldwin, and hereby files this proposed findings of fact, conclusions of law and order as directed by the Court on September 5, 2014 in open court after the conclusion of that hearing.
FINDINGS OF FACT
The State arrested the Defendant in the matter of State of Montana v. Cory Franklin, DC-13-465 on December 5, 2013. Deputy County Attorney, Kenneth Park (hereinafter “Park”) filed a motion for leave to file an information against the Defendant, along with an affidavit in support, on December 6, 2013. This Court entered an order granting the State leave to file an information against the Defendant in said matter on December 6, 2013. The State charged the Defendant with Conspiracy in the Criminal Distribution of Dangerous Drugs in violation of Section 45-5-201, MCA and Criminal Possession of Dangerous Drugs With Intent to Distribute in violation of Section 45-9-103(1), MCA. On December 23, 2013, the Defendant was arraigned of the charges against him. Sean Hinchey, contract attorney for the OPD, filed a notice of appearance for the Defendant and demand for discovery on December 11, 2013. The Court entered a scheduling order on December 30, 2013 setting the omnibus hearing for January 15, 2014.
On January 15, 2014, the parties attended the Omnibus Hearing and completed the form. Park indicated that 1) he disclosed all discovery in the State’s possession to the Defendant and that his obligation to do so was ongoing; 2) the State would supply books, papers, documents, photographs or tangible objects to the Defendant, implying that he had not so supplied this to the Defendant; 3) there was an informer in the case, that he would call that person as a witness at trial, 4) he has supplied the identity of the informer to the Defendant; 5) the State had electronic surveillance of the Defendant or his premises or leads obtained by electronic surveillance of Defendant’s persons or premises. The Defendant did not give notice that he was filing any other defense motion. However, once Baldwin became the Defendant’s attorney, the Defendant learned that he had several good faith grounds to file defense motions.
On January 29, 2014, the court held a pretrial hearing wherein the State, through Deputy County Attorney Stacy Bowman, and the Defendant were present. The Defendant, through his attorney, asked the court to continue the matter. Sean Hinchey filed a written motion to continue on February 6, 2014, which Park unopposed. The Court entered an order on February 10, 2014 granting the unopposed motion to continue. The Court entered a new scheduling order on February 6, 2014 setting the pretrial hearing for May 21, 2014, the omnibus hearing having been concluded and the Defendant having waived defenses at that time. For a short period of time, defense attorney John “Jack” Quatman appeared as counsel of record for the Defendant but filed a motion to withdraw on March 24, 2014, which the Court granted.
On March 24, 2014, the State arrested the Defendant in State of Montana v. Cory Franklin, DC-14-128. On March 24, 2014, Park filed a petition to revoke the Defendant’s $50,000 bond and stated as the reason his arrest in DC-14-128. This Court issued a bench warrant for the Defendant’s arrest setting bail at $100,000 plus appearance. Notice of hearing on the petition to revoke his bond was sent on April 21, 2014. Hearing was supposed to be held on April 24, 2014, but the State filed a notice to vacate said hearing on April 23, 2014. Apparently, Sean Hinchey had a conflict of interest given the new case in DC-14-128 and thus had to withdraw.
On April 16, 2014, OPD filed a notice of reassignment of counsel, indicating that Tim Baldwin (hereinafter “Baldwin”) replace Sean Hinchey as the Defendant’s attorney. Tim Baldwin’s fees are and were paid for by the State of Montana through his contract with the OPD. On May 2, 2014, Baldwin filed a waiver of speedy trial in this case and a motion to reset this matter for Omnibus Hearing and to grant relief of any waiver to file defense motions. The basis of the Defendant’s motion to reset omnibus and grant relief for any defense waivers was that the Defendant needed to file defense motions and that Park had not disclosed discovery to the Defendant.
On April 23, 2014, Baldwin sent an email to Park wherein he, among other things, informed Park of outstanding discovery, asked Park for discovery, and indicated that he believed there may be an illegal search and seizure in DC-14-128. Baldwin attached that email to his motion to compel, for sanctions and to recuse Park as prosecutor as Exhibit C. On April 30, 2014, Park responded to Baldwin’s email. Park told Baldwin the following:
“I’m going to make this simple. Cory can take 20 years with 10 suspended right now…This offer expires at 5:00 pm on Wednesday May 7, 2014, or upon the filing of ANY motions of any sort from your office except a motion for a change of plea. Should this offer be rejected, or a motion is filed, the state will proceed to trial and pursue maximum sentences for Cory on all of his cases and recommend he face federal charges with the other co-defendants. This offer is not open to any further negotiations.”
See Defendant’s Motion to Compel, For Sanctions, and To Recuse Park, Exhibits C and D. Park’s response to Baldwin plainly reveals that Park knew that discovery was outstanding, that Baldwin needed that discovery, and that Park willfully refused to disclose it to Baldwin. Park stated that if Baldwin were to file any defense motion, including a motion to compel discovery, Park would seek the maximum against the Defendant and seek the federal government to prosecute him. Park’s statement shows that Park was arbitrarily and improperly punishing the Defendant for filing a defense motion when Park’s refusal to provide discovery put the Defendant in that position in the first place.
On May 5, 2014, Baldwin filed a motion to reduce the Defendant’s bond. As part of Baldwin’s basis for the bond reduction, Baldwin asserted that the facts alleged against the Defendant in DC-14-128, which the State used as a basis to petition the Court to revoke the Defendant’s $50,000 bond, were weak. The Defendant showed the Court, in part, that the co-defendant Jaimz Doran admitted, among other things, that the Defendant did not possess any illegal drugs in the hotel room where the officers stopped the Defendant and searched without warrant and that there were no other facts to support that the Defendant possessed drugs at the hotel room. On May 7, 2014, Park filed a Response to the Defendant’s motion for a bond hearing objecting to the Defendant’s motion. On May 29, 2014, this Court set a bond hearing for June 4, 2014. In that hearing, Park opposed Baldwin’s reasoning regarding DC-14-128 as stated above and represented to this Court that he was looking into charges against the Defendant for illegally tampering with a witness, Jaimz Doran, alleging that the Defendant intimidated Doran to exculpate the Defendant. When Park testified on September 5, 2014 before this Court, however, Park testified that he did not disclose any evidence of that investigation to Baldwin. This Court was not able to hear any further motions or facts in this regard because Park moved this Court to dismiss DC-13-465 and DC-14-128.
On May 7, 2014, Park filed a Response to Baldwin’s motion to rest omnibus and grant relief for any defense waivers. In his Response, Park alleged that he had sent or made available discovery to the Defendant, though he does not state what discovery he provided to the Defendant. Park stated that Baldwin’s remaining request for discovery will be provided to the Defendant as required by discovery rules, but again, Park did not inform the Court of what discovery Park had or should have had in his possession that he knew he needed to provide to Baldwin.
As events unfolded in this case through Baldwin’s defense motions, it became clear that Park had not provided essential discovery to the Defendant, including Defendant statements, witness statements, search warrant application, and photographs. Yet, Park stated in his Response that the Court should deny Baldwin’s motion because Sean Hinchey indicated there were no more motions to be filed by the Defendant, in spite of the fact that Park knew that he had not disclosed essential discovery to the Defendant. Park represented to this Court that if the Court were to grant Baldwin’s motion, Baldwin would have the “ability to file voluminous motions” and would “use illegal requests for information…as the basis for this request.” Here Park demonstrated his bias against Baldwin as an attorney alleging that the motions Baldwin files are “voluminous” and “illegal.”
However, it became evident that Baldwin’s defense motions were not unfounded or without merit. In fact, this Court granted the motions Baldwin filed either in whole or in part and they ultimately resulted in Park moving to dismiss DC-13-465 and DC-14-128. Park continued in his Response and told this Court that there is no good cause to grant the Defendant’s motion “to file baseless untimely motions.” Response, page 3. Park’s assessment of Baldwin’s filing “untimely motions” was completely mistaken. Baldwin was moving the Court to allow him the opportunity to file defense motions. Thus, Baldwin had not filed any untimely motion but was using Montana law to grant relief from the Court for any defense waivers, which is what Baldwin had to do to file any defense motions. In DC-13-465, Park created the situation where the Defendant had to file a motion to compel discovery because Park intentionally withheld essential discovery to the Defendant. Contrary to Park’s assertions, good cause existed to grant Baldwin’s motions, which this Court did.
Park proceeded in his Response and stated that since trial was two months away the State and defense counsel can be prepared for trial, stating, “a motion for continuance of the jury trial has not been filed, but is anticipated. The State will oppose that motion if it is filed.” Id. Park then asked this Court to “take judicial notice that legal discovery requests that have been made have been complied with.” Id., page 4. Yet Park cited no facts or authority for his requests and as time revealed, Park did not disclose fundamental discovery to the Defendant until after Baldwin filed a motion to compel, for sanctions and to recuse Park as prosecutor. Park then asked that no hearing be set on Baldwin’s motion and that the Court deny Baldwin’s motion on Park’s representations alone.
This Court finds that Park’s insistence that the Defendant deny Baldwin’s motions for defense waiver relief even though Park did not disclose essential discovery to the Defendant to undermine Park’s credibility and evidences Park’s intentional prosecutorial misconduct. In short, Park intentionally withheld evidence from the Defendant upon Baldwin’s request, told Baldwin that Park would punish the Defendant for moving the Court to compel discovery, and then insisted that the Court not grant Baldwin’s motion for waiver relief when Park is the one who refused to disclose evidence that the Defendant needed to prepare his defense and be well advised by his attorney.
In the middle of Park’s prosecutorial misconduct, on May 8, 2014, Park filed a petition to revoke the Defendant’s sentence in DC-04-15. As a basis for his petition to revoke, Park refers to the report of violation filed by Parrish on May 7, 2014. In that report, Parrish alleged that the Defendant committed crimes in DC-2014-128 and DC-13-465. Parrish made other allegations for which Parrish did not file a report of violation until May 7, 2014, after the Defendant was arrested in December 2013 in DC-13-465 and then again in March 2014 in DC-14-128. During the cases of DC-13-465 and DC-14-128, the Defendant was on probation, which naturally expires on February 25, 2015. A hearing on Park’s petition to revoke was set for and held on July 31, 2014. At that hearing, Parrish testified that Park came to him and asked him to file a report of violation against the Defendant. Park admitted the same at the hearing before this Court on September 5, 2014.
A pretrial hearing was held on May 21, 2014 in DC-13-465. During that hearing, Baldwin was present and Deputy County Attorney, Stacy Bowman, was present on behalf of Park. Baldwin informed the Court that he had pending motions, which are described above, and articulated that he wanted the Court to reset the omnibus and pretrial hearings to allow him time to file defense motions. Bowman, on behalf of Park, objected but did not have any details of the case so could add nothing to her objection. This Court reset a pretrial conference to May 28, 2014 so Park could be present to address the Defendant’s requests.
During that hearing, Park opposed Baldwin’s motions and indicated that he would be ready for trial during the July 2013 jury trial term. Park admitted that he had not disclosed certain discovery to the Defendant but denied that he willfully refused to provide the discovery. Clearly, based on Park’s email to Baldwin on April 30, 2014, Park did not intend to provide any further discovery to Baldwin despite being required by law to do so. Park intended to mistreat the Defendant if he filed any defense motion, including a motion to compel discovery. This Court granted Baldwin’s motion to reset omnibus hearing and granted relief for any defense waivers based on the fact that Park had not disclosed essential discovery to the Defendant, including Defendant statements, witness statements, photographs, search warrant application, etc.
On May 27, 2014, Baldwin filed a motion to compel, for sanctions, and to recuse Park as prosecutor in this case. Attached to that motion, Baldwin attached a letter sent to Park dated May 2, 2014, wherein Baldwin listed items for Park to disclose. Park did not respond to that letter and did not provide Baldwin any discovery by the time Baldwin filed the motion to compel discovery and for sanctions. In his motion, Baldwin listed fifteen items of discovery that he had requested of Park but Park had refused to disclose. Among the items that Baldwin informed the Court Park had not disclosed, many are items absolutely required to be disclosed, including 1) a copy of the search warrant application; 2) a copy of all statements made by the Defendant in this case; 3) all evidence the State intends to use against the Defendant of prior bad acts in its case-in-chief; 4) a copy of all interviews and statements of all witnesses and arrestees in this case; 5) a copy of all recorded surveillance related to this case; 6) a copy of all photographs taken in this case; and 7) a copy of any written agreements or a copy of the terms of any oral agreements the State of Montana has made with any of the witnesses in this case to provide information to or testify for the State, including the confidential informant.
In Park’s Response to Baldwin’s motion to compel and for sanctions, he claims that as soon as Baldwin sent him a letter demanding discovery on May 2, 2014, Park immediately sent a letter to the Northwest Drug Task Force requesting the “legally allowable discovery.” Response, p. 2-3. By Park’s statement, Park admits he did not send a request for discovery to the Northwest Drug Task Force office when Sean Hinchey demanded discovery in December 2013 and when Baldwin asked for discovery on April 23, 2014. Clearly, if Park had the intent to comply with discovery regarding these essential items of discovery, Park would have sent the request in December 2013 and on April 23, 2014. Instead, Park supposedly sent a request for discovery when and only when Baldwin filed a motion to compel and for sanctions. To be certain, in his Response, Park admitted that Baldwin had good faith grounds to demand discovery from Park when Park told this Court that during the week of May 18, 2014, Park “immediately disseminated the discovery to Tim Baldwin by hand once it was copied and distributed.” Response, p. 3, lines 2-4. Oddly, in his Response, Park claimed that Baldwin was conducting an “ad hominem attack on the prosecution,” yet Park provided no basis for his ad hominem attack against Baldwin. In fact, Baldwin’s motions were well-grounded: this Court granted Baldwin’s motion to reset omnibus hearing; Park admitted that he should have provided Baldwin necessary discovery, which he had withheld until Baldwin filed his motion to compel discovery; and Park’s actions clearly warranted defense motions from Baldwin.
As a basis of the motion for sanctions, Baldwin alleged that Park had willfully refused to provide discovery. The evidence supports this allegation, even though this Court was not able to hold a hearing on this motion because Park moved to dismiss this case before a hearing could be set. Still, Park admitted that he had not provided essential discovery to the Defendant even though the Defendant filed a motion for discovery in December 2013. Plainly, Park knew of his discovery obligation and knew of the evidence not disclosed to the Defendant, because at least, when Baldwin requested outstanding discovery on April 23, 2014, Park was on notice that he had not disclosed evidence. However, instead of disclosing that evidence pursuant to his legal obligation, Park retaliated against Baldwin and his client by stating he would seek the maximum if Baldwin filed any defense motion, including a motion to compel discovery. When Baldwin filed a motion to reset omnibus (because Park had not provided essential discovery and the Defendant had not raised through his prior attorney any defenses in his omnibus form), Park objected to Baldwin’s motion claiming that Baldwin was attempting to file “voluminous and illegal” motions. Park’s objection demonstrates, once again, that Park was using his power as a prosecutor to impose arbitrary and unfair hardships on Baldwin and the Defendant because Baldwin did what Park told him not to do: file ANY defense motions.
Park, in his Response, also tried to mislead this Court to believe that as soon as Baldwin sent Park his “first written correspondence” for discovery on May 2, 2014, Park complied quickly and willingly, to thus lead this Court to believe that she need not sanction Park. In truth, Baldwin sent Park an email on April 23, 2014 asking him for discovery, not to mention Sean Hinchey requested discovery in December 2013. Park responded to Baldwin’s email stating that if Baldwin filed any defense motion, which includes a motion to compel discovery, Park would seek the maximum penalties against the Defendant and attempt to influence the federal government to prosecute him. Park clearly had no intent to comply with discovery obligations on April 23, 2014, which was Baldwin’s first attempt to obtain discovery from Park. Park intended to punish the Defendant if Baldwin filed any defense motions including a motion to compel the discovery that Park knew he possessed but willingly refused to provide.
It was not until Baldwin filed a motion to compel that Park provided Baldwin with essential discovery, without which, Baldwin could not have competently represented and advised his client. Thus, Park’s nondisclosure of essential discovery cannot be, as Park purports to the Court, deemed unintentional. Park knew exactly what he was doing in April 2014 when he responded to Baldwin as he did on April 30, 2014. This Court did not have the opportunity to rule on Baldwin’s motion to compel and for sanctions because Park moved this Court to dismiss DC-13-465, which this Court granted. Still, Park superimposed the Court’s granting of Baldwin’s motion to reset the omnibus hearing as a sanction against him for failure to provide discovery to the Defendant. See Response, p. 12, lines 19 (“There is no reason to sanction the State any further than the continuance that the Court has allowed.”) In truth, the Court’s granting Baldwin’s motion to reset omnibus was not a ruling on the Defendant’s motion to compel discovery and for sanctions.
As a basis of the motion to recuse Park as prosecutor, Baldwin filed a supporting affidavit of Kristina Franklin, the Defendant’s wife, wherein she describes her phone conversation with Park on or about April 24, 2014—the day after Baldwin sent an email to Park asking for discovery, to which Park responded on April 30, 2014 refusing to provide any discovery to Baldwin. In that affidavit, Kristina Franklin asserts that Park told her, among other things, that Park dislikes Baldwin; that as long as Baldwin is the Defendant’s attorney, Park would not do anything to assist the Defendant in the outcome of his cases; and that Park could help the Defendant if he got a new attorney. On June 6, 2014, Park filed a Response to this motion. Park claimed that Baldwin’s motion to recuse Park as prosecutor was unfounded, false or baseless and claimed he had no conflict of interest in prosecuting the Defendant. Response, p. 12, lines 20-22. Clearly, the facts of this case demonstrated otherwise.
By appearances, Park had a conflict of interest and could not prosecute the case against the Defendant fairly because of Park’s unique and personal disdain for Baldwin. In his Response, Park admitted that he told Kristina Franklin that “he had not had a good experience with Mr. Baldwin in their last trial together” (Response, p. 10, line 3), but Park never, in any filing, stated what facts would cause Park to justifiably treat Baldwin any differently than any other defense attorney. Park admitted on September 5, 2014 that he has tried many jury trials, which means that the defense attorneys in those cases used the adversarial process to advocate for their clients, including filing defense motions, disputing facts, arguing the law and contesting the State’s charges against the defendants. Yet Park has continually attacked Baldwin for “filing voluminous motions.” This Court will take judicial notice of Baldwin and Park’s case in State v. Brandon Stanfield, DC-13-49, over which this Court presided, and will note that Baldwin represented his client vigorously and in good faith; at no time did Park allege that Baldwin had filed a defense motion in bad faith and there was no evidence presented of such a thing. In his Response, Park admitted that he told Kristina Franklin that he would make Baldwin an offer, which Park did on April 30, 2014. That “plea offer” included Park’s statement that he would seek the maximum penalties against the Defendant if Baldwin filed any defense motion, including a motion to compel discovery — even though Park admittedly did not provide essential discovery to the Defendant when Baldwin asked him for the same in his email dated April 23, 2014. In essence, Park was going to punish the Defendant for asking the Court to require Park do what he is required to do by law and should have done in December 2013 when Sean Hinchey filed a request for discovery.
On June 16, 2014, Baldwin filed a Reply to Park’s Response and supplemented his motion to recuse Park as prosecutor by attaching an affidavit of Kristina Franklin detailing her phone conversation on June 6, 2014 with Northwest Drug Task Force Agent, McKeag Johns, concerning the Defendant, his cases, which Park was prosecuting, and Baldwin as his attorney. Park did not respond to this new evidence provided in Baldwin’s Reply. In fact, after Baldwin filed this affidavit, Park and Corrigan deprived and denied Baldwin the opportunity to explore these very serious allegations of prosecutorial and official misconduct, despite the clear opportunities Baldwin was seeking to unfold in his defense of the Defendant. Too, after Baldwin filed a motion for additional hearing on September 16, 2014 regarding the audio recording of Kristina Franklin’s conversation with Johns, Corrigan objected to the admission of the audio recording for this Court’s consideration.
On June 17, 2014, Baldwin delivered letters to Ed Corrigan, Park, Sheriff Chuck Curry and Johns requesting interviews. See Notice of Serving Request for Interviews. On June 17, 2014, Baldwin filed a Request for Hearing on his Motion to Compel, For Sanctions and To Recuse Park as prosecutor, on which this Court had not yet ruled; however, Baldwin requested that the Court not set a hearing on the motion until he had interviewed Park, Corrigan, Curry and Johns. This Court granted Baldwin’s motion on June 23, 2014. On June 30, 2014, Baldwin filed a Motion to Compel Depositions of Corrigan, Park, Curry and Johns. Park did not respond to said motion. Instead, on July 2, 2014, Park filed a motion to dismiss this case and DC-14-128, which this Court and Judge Ted Lympus granted. In that motion to dismiss, Park stated no specific reason for dismissal even though prior to Baldwin filing Kristina Franklin’s affidavits, Park was adamant that this Court set DC-13-465 for jury trial in the July 2014 jury trial term; that this Court deny the Defendant the opportunity to obtain discovery from Park; and that the Defendant was allegedly a danger to himself and society as Park purported to this Court at the hearings held in DC-13-465.
On July 16, 2014, Baldwin filed a Motion For Rule 11 Sanctions and Request For A Hearing. In that motion, Baldwin asserted that Park filed his Petition to Revoke the Defendant’s probation for an improper purpose; namely, that Park had an actual bias against Baldwin and used his power as a prosecutor to treat the Defendant and his attorney unfairly and unethically. Baldwin alleged that though Park appears to the primary culprit in the unethical actions against Baldwin and the Defendant, Park’s unethical actions have been known and should have been prevented by Corrigan. Baldwin asserted that Corrigan is responsible for the actions of Park, his employee, since Park’s unethical actions were known or should have been known and thus prevented by Corrigan.
On July 29, 2014, Deputy County Attorney, Stacy Bowman replaced Park as prosecutor in this case. Apparently, Corrigan found sufficient facts to warrant removing Park from these cases. The Court will take judicial notice of this fact and of all of the other cases in Flathead County District Court that Corrigan removed Park from prosecuting. Bowman filed a Response to Baldwin’s Rule 11 motion. In her Response, Bowman asserts that since Park had the authority to file a petition to revoke the Defendant’s probation, the Court cannot or should not sanction Park and Corrigan. Response, page 1, lines 19-22. Bowman claims that Park did not order Parrish to file a report a violation but only requested that Parrish file one. Response, page 2, lines 1-2. In conclusion, Bowman argued that since probable caused existed to file a petition to revoke the Defendant’s probation, sanctions are not warranted and the Defendant’s motion should be denied. As discussed below, Bowman focuses on the wrong issue. The issue is not whether Park had the authority to file a petition to revoke, but rather, did Park file the petition for an improper purpose, or did Park conduct prosecutorial misconduct when he filed the petition to revoke the Defendant’s probation.
The Court held a hearing on September 5, 2014 on the Defendant’s Rule 11 Motion. The Court finds that Park’s testimony was self-serving and incredible concerning his motive for filing a petition to revoke. During Park’s testimony, Park indicated that he sent the email to Baldwin on April 30, 2014 because of who the Defendant’s attorney was.
Q. Well, you remember when you sent me an email stating that if I filed any defense motions at all that you would seek the maximum penalty for Mr. Franklin?
Q. Is that common practice of yours that if a defendant files a defense motion that you will seek the maximum?
A. With you.
Transcript of September 5, 2014 Hearing, page 38, lines 13-21. Park later tried to qualify this statement, but Park’s answer here comports to the facts surrounding Park’s treatment of Baldwin and the Defendant in DC-13-465 and DC-14-128. Park also testified on cross-examination that it was unusual for Park to seek the maximum penalties where the defense attorney files a defense motion on behalf of the Defendant.
A. I also included in that email that that offer was withdrawn at the filing of any defense motions other than a change of plea – a request for change of plea.
Q. is this type of arrangement unusual?
A. It is, yes.
Transcript of September 5, 2014 Hearing, page 47, lines 1-6. Park then incredibly testified that his offer as presented to Baldwin was to the Defendant’s benefit; but clearly, the Defendant received the benefit of Baldwin filing defense motions and not accepting Park’s offer. It appears that to Park, the Defendant could have only benefitted by doing what Park wanted him to do and not pursuing his defenses in the criminal justice system.
What is also incredible about Park’s testimony is that Park clearly intended to use his prosecutorial power to intimidate the Defendant to plea to the charges. When Baldwin sent Park an email requesting discovery on April 23, 2014, Park had specific notice that Park had not complied with discovery and that the Defendant wanted this discovery. Park created this situation for the Defendant by not providing discovery that Park knew or should have known about and thus disclosed starting in December 2013. That Park thinks his treatment of the Defendant in this manner is for the Defendant’s benefit reveals how Park is misusing his power as a prosecutor.
Park then testified on re-direct that he dismissed DC-13-465 and DC-14-128 because Corrigan ordered him to do so; but that he did not know why Corrigan asked him to do so and did not have any discussion with Corrigan about why he ordered Park to dismiss these cases. Yet, Corrigan contradicts this statement as he testified that he and Park discussed the reasons why Corrigan told Park to dismiss it. Clearly, Park knew that the reason Corrigan told him to dismiss these cases was because Kristina Franklin’s affidavits were very serious allegations against Park and Johns; and as Corrigan said, this appearance of impropriety was sufficient cause to dismiss the cases. This Court finds that indeed there was an appearance of impropriety, and the Court finds that Park’s conduct towards Baldwin and the Defendant in DC-13-465 be actual impropriety, not just the appearance.
During Corrigan’s testimony, the following testimony was brought forth. Corrigan told Park to dismiss DC-13-465 and DC-14-128. Corrigan stated that he had a discussion with Park about why he wanted him to dismiss those cases. When asked why Corrigan told Park to dismiss these cases, Corrigan said,
A. Well, I reviewed the affidavits, your Exhibits A and B, asked Mr. Park to provide a response, discussed those affidavits with Mr. Park, discussed the affidavits with my chief deputy, Tara Fugina, we discussed the affidavits with the sheriff, and we met and discussed them as well with McKeag Johns, and while I do not believe what Ms. Franklin says – I do not trust her, nor do I trust your client given the situation that they are in – I concluded that there was enough of an appearance of impropriety that warranted dismissing the cases and not proceeding any further.
Q. And did – well, so you wanted to dismiss these cases on the basis of an appearance of impropriety?
A. Correct. I do not allow cases to prosecuted if by doing so the credibility of my office and my attorneys are somehow cast in0to doubt in the eyes of the public defenders, the remainder of the defense bar, and perhaps most importantly of all, the district judges.
Q. So you claim that you don’t believe the affidavits or what’s contained in them?
A. Well, let me back off. I don’t believe everything that’s in them. I believe conversations took place, particularly in the case of McKeag Johns; I believe he shared some information with Ms. Franklin that he probably shouldn’t have, I’m not of the opinion that Ms. Franklin played the both of them like violins quite successfully, but the bottom line is there was enough there of concern in terms of creating an appearance of impropriety that I believed it to be most appropriate to dismiss the charges at that time and simply proceed further with the revocation.
Transcript of September 5, 2014 Hearing, page 68-69. As admitted by Corrigan here and as Corrigan later admitted, the allegations against Park and Johns are very serious. Given the uniqueness of these allegations and the evidence supporting the allegations, Corrigan found that dismissing the cases was in the best interest of the judicial system.
What is notable to the Court, however, is Corrigan dismissed these cases before Baldwin could use the adversarial process, which is designed to discover the truth of facts in criminal matters, to discover the truth of Kristina Franklin’s affidavits. Instead of allowing Baldwin to interview witnesses, Corrigan dismissed these cases and then supposedly conducted his own “investigation” with the convenience of that investigation taking place without public notice or knowledge. Corrigan, through his private investigation, came to the conclusion that neither Park nor Johns had done anything wrong. The circumstances here not only support the allegation that Park used his prosecutorial authority improperly but that Corrigan attempted to minimize or eliminate the damage caused by Park’s and Johns’ “appearance of impropriety.” Through Corrigan’s private “investigation”, Corrigan was able to control the findings of the investigation instead of allowing this Court to make factual and legal determinations through the judicial process, which is designed to be fair and impartial to both parties. As such, Corrigan has only added to the “appearance of impropriety.”
The Court also finds that Corrigan’s testimony concerning his and his office’s dislike for Baldwin is strikingly similar to what Kristina Franklin said Park and Johns told her, despite the fact that Park and Corrigan claim that no one told Kristina what she swore to in her affidavit. Corrigan’s testimony concerning what his deputy county attorneys have said about Baldwin in their line of work compared to Kristina’s affidavit are so similar that this Court finds the allegations contained in Kristina’s affidavits to be credible.
Corrigan admits that the appearance of impropriety is so serious that dismissing two serious felony charges is better than prosecuting them where the judicial system is tainted because of what Kristina Franklin revealed in her affidavits. It strikes this Court as odd that given the seriousness of these allegations against Park and Johns specifically, Baldwin should have been given the opportunity either to prove the allegations so that Corrigan could have taken proper steps to eliminate the source of the impropriety, or to disprove the allegations and thus clear the good name and reputation of Corrigan, his deputy county attorneys and law enforcement officers. This, coupled with the State’s objection to allowing this Court to consider the audio recording of Kristina Franklin’s conversation with Johns, demonstrates to this Court that Corrigan has only added to the appearance of impropriety.
The issues raised by the Defendant in his motion for sanctions under Rule 11, M.R.Civ.P. are:
1) Whether Park filed the petition to revoke the Defendant’s probation for an improper purpose; or alternatively, whether Park committed prosecutorial misconduct when he filed a petition to revoke; and
2) Whether Corrigan failed to supervise Park properly to prevent Park from filing a petition for an improper purpose or from committing prosecutorial misconduct.
CONCLUSIONS OF LAW
The Defendant moved this Court to enter sanctions against Park and Corrigan for the reasons stated herein under Rule 11, M.R.Civ.P. Even if this Court were to find that Rule 11 does not apply in this criminal proceeding, this Court has the inherent judicial power to sanction attorneys practicing before her where it is shown that the attorney has violated the law or rules of ethical conduct.
Using the standard provided by the Defendant under Rule 11, M.R.Civ.P., it is clear to this Court that if the Defendant has proven that Park filed the petition to revoke for an improper purpose, he has shown that Park committed prosecutorial misconduct, to which sanctions may apply. The Court notes that in the State’s original reply, it did not object on grounds that Rule 11, M.R.Civ.P. does not apply to the present motion even though it did at the hearing on September 5, 2014. The State could be deemed to have waived its objection in this regard as it was raised outside of the time to respond to the Defendant’s motion. The Court agrees with Baldwin that the imposition of Rule 11, M.R.Civ.P, that no attorney shall file a motion or petition for an improper purpose, simply makes sense to apply universally for as one Montana Court said, “The purpose of Rule 11 is to ‘discourage dilatory or abusive tactics…” Metully v. Applebury, 2005 ML 288, 2005 Mont. Dist. LEXIS 732 (Mont. Dist. Ct. 2005). Clearly, prosecutors should be discouraged from dilatory or abuse tactics, if not more so than civil attorneys, since the results of a prosecutor’s dilatory and abuse tactics is potentially the loss of a defendant’s liberty or life. Still, it is true that there is a question as to whether Rule 11 applies in criminal cases, but using common sense, the State cannot validly argue that Park may file a petition for an improper purpose. As such, if the Court finds that Park filed a petition to revoke for an improper purpose, she may use her inherent judicial power to sanction Park and to sanction Corrigan for not properly supervising Park to prevent his prosecutorial misconduct, especially relative to a case involving Baldwin, for whom Corrigan testified that Park and other deputy county attorneys have no respect.
Article II, Section 16, Montana Constitution (1972) guarantees every person fair access to the courts of this state: “Courts of justice shall be open to every person…Right and justice shall be administered without sale, denial, or delay.” Section 17 guarantees also, “No person shall be deprived of life, liberty, or property without due process of law.” Section 24 guarantees that “In all criminal prosecutions the accused shall have the right to…defend…by counsel.” The allegations raised by the Defendant go to these constitutional rights to have a fair and impartial criminal procedure and trial brought against him. The Defendant asserts that Park’s and Corrigan’s acts and omissions in these cases rise to the level of prosecutorial misconduct and thus have undermined the Defendant’s constitutional rights. The Court has the inherent judicial power to ensure that the Defendant’s constitutional rights are not violated by prosecutors. See State v. Wardell, 2001 MT 148N, P42, 2001 Mont. LEXIS 305, 19 (Mont. Aug. 9, 2001) (“courts have the inherent duty to…protect individual rights set forth in the constitution”).
This Court must consider the special obligations of a prosecutor regarding the Defendant’s motion. Montana Supreme Court Justice Laurie McKinnon recently offered guidance on how to treat prosecutors who violate their special obligations. Specifically, Justice McKinnon said the following about deterring prosecutorial misconduct,
Chief Justice McGrath recently observed that “[a] prosecutor is an officer of the court” who “must strive to promote justice and the rule of law.” State v. Criswell, 2013 MT 177, ¶ 57, 370 Mont. 511, 305 P.3d 760 (McGrath, C.J., concurring). Unfortunately, however, “‘some prosecutors have permitted an excess of zeal for conviction or a fancy for exaggerated rhetoric to carry them beyond the permissible limits of argument.’” Criswell, ¶ 55 (McGrath, C.J., concurring) (quoting ABA Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8, Commentary, 107 (3d ed., Am. B. Assn. 1993)).
State v. Ugalde, 2013 MT 308, P110, 372 Mont. 234, 261, 311 P.3d 772, 792, 2013 Mont. LEXIS 428, 57, 2013 WL 5651838 (Mont. 2013) (dissenting opinion). She strongly opined that the Court should grant the kind of relief that will give disincentive to and prevent this prosecutor from engaging in further misconduct. She said,
[T]his Court’s ongoing refusal to address improper arguments such as here perpetuates tolerance of trial tactics that undermine fairness in our tribunals. As I have observed previously, “[t]he message that this increasingly prevalent practice is sending, unfortunately, is that prosecutors in this State can be assured of having their convictions upheld despite comments made during trial which violate ethical rules and ‘run the risk of undermining the fundamental fairness of the judicial process.’”
Ugalde, 2013 MT 308, P117-P118, 372 Mont. 234, 264-265, 311 P.3d 772, 794, 2013 Mont. LEXIS 428, 65-66, 2013 WL 5651838 (Mont. 2013) (emphasis added). See also State v. Aker, 2013 MT 253, P65, 371 Mont. 491, 512, 310 P.3d 506, 520, 2013 Mont. LEXIS 342, 45, 2013 WL 4759578 (Mont. 2013) (“I would reverse Aker’s conviction based upon prosecutorial misconduct and ineffective assistance of counsel”).
In addition, the Montana Supreme Court has described the Court’s inherent authority to deal with rouge prosecutors when their misconduct results in the prejudice or adversely impacts the rights of the defendant. The Court said,
[The] trial court may consider attorney violations of the Rules of Professional Conduct if that misconduct results in prejudice or adversely impacts the rights of the parties in the case pending before it…One common example of where a court may consider a professional conduct rule violation–which is at issue here–is the disqualification of an attorney due to a conflict of interest. A district court’s discretion in this regard flows from its inherent authority to control trial administration in the interest of fairness and justice. See, e.g., Anderson v. Werner Enterprises, Inc., 1998 MT 333, P13, 292 Mont. 284, P13, 972 P.2d 806, P13. See also § 3-1-111, MCA (granting all courts the power to provide for the orderly conduct of proceedings, and control, in furtherance of justice, the conduct of all other persons in any manner connected with a judicial proceeding).
Schuff v. A.T. Klemens & Son, 2000 MT 357 (emphasis added) (citations omitted). Plainly, the District Court has the inherent power to prevent and deter the violation of defendants’ rights by prosecutors. The District Court has as much power to sanction prosecutorial misconduct as it does to prevent it. Motta v. Granite County Comm’rs, 2013 MT 172, P17, 370 Mont. 469, 473, 304 P.3d 720, 723,2013 Mont. LEXIS 223, 7, 2013 WL 3324396(Mont.2013) (“Montana district courts possess inherent power to sanction willful or reckless conduct, especially when combined with frivolousness, harassment, or improper purpose”).
Similar to the Court’s ability to recuse a prosecutor where justice requires, the Court has the inherent power to sanction a prosecutor where he has violated the defendant’s right to fairness in the criminal justice system. The Montana Supreme Court provided the standard for the Court’s consideration in this regard,
a motion to disqualify [a prosecutor] must offer sufficient proof that the continued representation of one party by the attorney or firm will prejudice or adversely impact the rights of another party in the matter pending before the court. Evidence demonstrating that an attorney or firm did, in fact, violate a professional conduct rule merely serves as additional weight that may tip the scales in favor of disqualification.
Id. (emphasis added); See also, Section 46-13-401(1), MCA. Where sufficient proof is provided that the prosecutor acted in a manner or had the intent to cause a result that adversely affected the right of the Defendant’s right of fairness in the judicial process, this serves as sufficient evidence for the Court to exercise its inherent power to sanction the prosecutor. See, State v. Madsen, DC-11-51A, page 9, citing Berger v. United States, 295 U.S. 78, 88 (1935) (“The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done.”)
Corrigan admitted that Park and Johns created an appearance of impropriety, which is the very thing that the Montana Supreme Court has admonished prosecutors for doing. The Montana Supreme Court has observed, the “prosecutor must exercise the duties of his representative office diligently and fairly, avoiding even the appearance of impropriety.” Id., (emphasis added) citing State ex rel. Fletcher v. District Court, 260 Mont. 410, 415, 859 P.2d 992, 995 (1993); In re J.M., 2009 MT 332, ¶ 29, 353 Mont. 64, 218 P.3d 1213 (Nelson, J. concurring). Moreover, “it is essential that the system for dispensing justice be so maintained that the public have absolute confidence in the integrity and impartiality of its administration.” Id., citing Montana Ethics Opinion, No. 881130. On the basis of Park’s appearance of impropriety, the Court finds sufficient cause to sanction Park and Corrigan, just as Corrigan found it sufficient to dismiss DC-13-465 and DC-14-128 “in the interest of justice” as stated in Park’s motion to dismiss in these cases.
But here, there was more than an appearance of impropriety. Park demonstrated actual impropriety against Baldwin and the Defendant which adversely affected the Defendant’s right to a fair judicial process or which was intended to cause adverse effects on the same. The first indication of Park’s intent to mistreat Baldwin and the Defendant arbitrarily and unfairly is when Park responded on April 30, 2014 to Baldwin’s email sent on April 23, 2014, wherein Park told Baldwin that if he filed any defense motion he would seek the maximum penalties against the Defendant and would recommend that the federal government prosecute the Defendant. In stark contrast to what Park stated in his Response filings to Baldwin’s defense motions, Park knew or did not care that he had not disclosed essential discovery to Baldwin, which Park should have disclosed to the Defendant when Sean Hinchey filed his demand for discovery in December 2013. Instead of providing this discovery to Baldwin upon his request, Park treated Baldwin and the Defendant unfairly and arbitrarily.
After Park sent this email to Baldwin, Baldwin filed defense motions on behalf of his client, including a (1) motion to reset omnibus hearing and grant relief for any defense waivers, which this Court granted, (2) motion to reduce bond, which this court granted in part, and (3) motion to compel, for sanctions and to recuse Park as prosecutor, which eventually led Park and Corrigan to dismiss these cases. Based on the results of Baldwin’s defense motions, it is clear that Baldwin had good faith and merited grounds to file his motions. Yet, throughout Park’s response filings, Park impugned Baldwin’s character and intent as an attorney claiming, as Park repeatedly did, that Baldwin files “voluminous” and “illegal” motions. The fact is, however, that Park willfully violated discovery by not providing Baldwin with essential discovery when Baldwin requested it on April 23, 2014, evidenced by Park’s response email to Baldwin in April 30, 2014. The kind of discovery that Park withheld from Baldwin were essential items that any defense attorney would need to advise his or her client.
When Baldwin filed a motion to recuse Park as prosecutor, he filed two affidavits of Kristina Franklin, wherein she detailed her conversation with Park and Johns threatening and intimidating the Defendant to terminate Baldwin as his attorney. In those conversations, Kristina states that both Park and Johns told her that the Defendant would be mistreated if he does not terminate Baldwin as his attorney. These accusations are extremely serious, as admitted by Corrigan. Throughout these proceedings, Park denied having told Kristina these very unethical and perhaps unlawful statements; Corrigan denied the truth of these allegations; and Johns denied the specifics of these allegations according to Corrigan’s testimony. But Baldwin sent to Park, Corrigan, Curry and Johns a request for an interview to discuss the content of Kristina Franklin’s affidavits; yet none of them responded to Baldwin’s request and demonstrated their unwillingness to cooperate in Baldwin’s discovery.
Baldwin thus moved this Court to enter an order compelling their depositions in light of the serious nature of Kristina Franklin’s affidavits. This Court had already entered an order granting Baldwin’s motion to hold a hearing on this motion to compel, for sanctions and to recuse Park, which stated that the hearing would not be set until Baldwin interviewed Park, Corrigan, Curry and Johns. But before Baldwin could obtain an order from this Court, Corrigan dismissed these cases. Corrigan testified that he conducted an investigation of the allegations made about Park and Johns, but this investigation was made known to no one, even though two criminal cases were pending concerning these allegations. Instead of Baldwin being able to learn the facts of the allegations through the judicial process, Corrigan conducted his own internal “investigation” of his employee, Park, a member of the Northwest Drug Task Force, McKeag Johns, and Sheriff Curry. As such, the adversarial process of the criminal justice system was not available for Baldwin to learn more details about the truth of the allegations brought to light by Kristina Franklin.
The appearance of impropriety exists not only because Kristina Franklin’s affidavits detail her conversations with Park and Johns to the point of reflecting the accuracy and credibility of her statements, but also because Corrigan dismissed these cases when Baldwin was in the process of obtaining an order from this Court to depose Park, Corrigan, Curry and Johns. Instead of allowing the truth or falsity of the allegations to be shown through the process of criminal litigation, Corrigan removed these questions from public notice and conducted a behind-the-door investigation. Notably, Corrigan insisted in his testimony that Kristina’s allegations against Park and Johns were false; but if Kristina’s allegations were false, Corrigan would have had a strong interest in allowing the judicial process to reveal the truth that Kristina was lying about what Park and Johns told her, which would have cleared the good name of the County Attorney’s Office and Agent Johns. What appears from Corrigan’s dismissal of these cases is that Corrigan was not interested in protecting the judicial system but in covering the prosecutorial misconduct of Park and egregious actions of Johns.
Lastly, Corrigan knew of Park’s particular dislike for Baldwin. Corrigan testified that several of his deputy county attorneys have no respect for Baldwin as an attorney and find his handling of cases problematic. Corrigan stated that he has no personal experience with Baldwin to know anything about Baldwin but simply trusts his deputy county attorney’s judgment. Corrigan thus had notice that Park may use his prosecutorial power to mistreat Baldwin and his clients in the judicial system. Corrigan never corrected his deputies regarding their accusations and never attempted to learn the truth of these matters relative to Baldwin. It appears that Corrigan created an environment in his office whereby his deputies could abuse their power as prosecutors in cases where Baldwin was the defense attorney.
Based on these reasons, this Court finds that sanctions should be imposed on Park and Corrigan for the appearance of Park’s prosecutorial misconduct and for his actual prosecutorial misconduct, and for Corrigan’s failure to properly supervise Park regarding his handling of cases involving Baldwin.
WHEREFORE, for the foregoing reasons, IT IS HEREBY ORDERED that:
- Kenneth Park be sanctioned;
- Ed Corrigan, the Flathead County Attorney, be sanctioned;
- The Flathead County Attorney’s Office shall pay the Office of Public Defender all attorney’s fees and costs incurred by Tim Baldwin’s representation of Cory Franklin in DC-13-465, DC-14-128 and DC-04-15;
- The Flathead County Attorney’s Office shall pay the Office of Public Defender all attorney’s fees and costs incurred by Tim Baldwin’s representation of Cory Franklin in the prosecution of his motion for sanctions;
- That Tim Baldwin shall submit an affidavit of attorney’s fees and costs to be ordered by this Court; and
- The Petition to Revoke filed against the Defendant in this matter be dismissed with prejudice.
Respectfully submitted this 10th day of October, 2014.