by Tim Baldwin
I recently represented a Montana citizen whom the state government charged with felony stalking, which allegedly occurred between May 29, 2014 to July 3, 2014. He had an existing restraining order against him (because he “tailgated” her too closely one day), which his wife applied for and obtained from a justice court (not a hard thing to obtain nowadays). When there is a restraining order in place, it makes a stalking charge a felony. My client had a prior felony drug possession conviction within 5 years of this stalking charge, so under Montana law, the government was seeking PFO (“persistent felony offender”) status. This means, if convicted of the stalking offense, my client was facing a maximum of 100 years in state prison with no less than 4 years in prison. His situation was seriously dangerous.
My client had a prior defense attorney represent him. That attorney tried the case at trial before 12 jurors. At end of the trial, 11 of 12 jurors said GUILTY. One juror said NOT guilty, however. He was nearly convicted, but it was a hung jury. Still, the government did not give up prosecution: they wanted a second trial. After this, the prior defense attorney and client had a breakdown in their relationship. This is where I stepped in and began representing my client.
Prior to my representation, the defense attorney did not do many things I thought were necessary and critical for a good defense. For example,
- the complaining witness had a prior conviction against my client for assault. I wanted to use this as character evidence under Rule 404(a) and (c), Mont. Rules of Evid.;
- my client’s family law attorney had instructed my client during the time of the alleged “stalking” to take photos of his personal property. This is why my client was “caught” on his property taking pictures, which the complaining witness claimed was “stalking”;
- a mutual friend of my client and the complaining witness said that the complaining witness told him to tell my client that she had pictures of their children in her vehicle and that he could get them since she would be out of town. Since she claimed he was “stalking” her by going into her car, this witness was important to show she was setting up my client;
- the government had not disclosed exculpatory evidence, which was needed to defend the client. This included the numbers of time that the complaining witness called the police against my client, but the reports showed that she was either unreasonably paranoid or vindictive;
- during the first jury trial, the defense attorney did not object to many prosecutor questions that, in my opinion, violated the rules of evidence. I filed a motion in limine to exclude these questions; and
- all of the witnesses needed to be interviewed, but they weren’t before the first trial.
After I performed these tasks (and more), the court held a hearing on my defense motion to use character evidence against the complaining witness. The court ruled that I could use the evidence if the government elicited testimony or made arguments at trial that my client dominated her in their relationship, which is why she was “scared” of him. This took the wind out of the government’s case in many respects. Then, the Court indicated at the hearing that she was going to grant my defense motion to keep out certain testimony that violated rules of evidence. Again, this took the sting out of the government’s case. In short, the prosecutors’ case had substantially worsened and weakened–by the defense simply discovering the facts and using the law.
What happened next? One week before trial, the government offered to reduce the felony stalking charge to two misdemeanor restraining order violations. My client accepted. So, instead of facing 100 years in prison if convicted at trial, my client pleaded to two misdemeanors, for which he was ordered to be on 12 months unsupervised probation.
The moral of this story is simply this: if an accused expects to get the best result possible, he must hire a defense attorney who
- is willing and able to work hard;
- knows how to deal with prosecutors and witnesses;
- knows criminal and constitutional law;
- digs deeply into the case;
- isn’t afraid of taking cases to trial; and
- knows what to do with the information he learns.
It’s the difference between life in prison and 12 months probation.