Adams, formerly a Yellowstone County attorney, has since died. His defense of Bromgard is at the heart of a claim Bromgard has filed against the county in a $16.5 million federal lawsuit naming both the county and the state of Montana.
DNA testing eventually exonerated Bromgard of the rape in 2002, and he was released from state prison after 15 years behind bars.
During the latest session mediated by U.S. Magistrate Judge Keith Strong earlier this month, Yellowstone County made Bromgard a final offer, said Dan Schwarz, chief deputy Yellowstone County attorney. While prohibited by the court from discussing details, Schwarz said the county's offer is open until the end of the year. Bromgard has not yet accepted or rejected the offer.
U.S. Magistrate Judge Carolyn Ostby, the presiding judge, has denied the county's efforts to be dismissed from the case and has not yet ruled on similar motions by the state.
Bromgard alleges the county violated his constitutional right to effective legal counsel and that it consistently failed to supervise or train attorneys appointed to represent indigent defendants. The county's policy amounted to “deliberate indifference” to his rights, he claims.
Montana's public defender system was overhauled after the American Civil Liberties Union sued the state in 2002, arguing that funding, oversight and the quality of free lawyers provided varied dramatically throughout the state. The ACLU put its suit on hold to allow the Legislature to craft and fund a new system, which went into effect in 2006.
In Bromgard's case, Adams met with his client a few times before trial, gave no opening statement, called few witnesses, did not prepare a closing argument and failed to file an appeal, Bromgard says.
The county argues that its only involvement in the indigent defense system at that time was to pay the salaries of the appointed lawyers. The state district judges, not the county, were responsible for hiring, supervising and setting the pay of the lawyers, the county says.
Depositions taken in the lawsuit of former county commissioners, judges, a lawyer and Bromgard portray an indigent defense system that operated with little, if any, scrutiny by anyone.
The Billings Gazette obtained depositions through a court order. Portions of depositions, which are sworn statements of witnesses, were blacked out to protect the privacy of the victim and personal information of others.
According to the depositions, commissioners didn't question the money they approved for district court. And judges showed little interest in budgeting and took an informal, hands-off approach to hiring and supervising attorneys for the poor.
One of the appointed attorneys, who quit after 11 years, tried to do his best. At that time, judges hired private practice attorneys to represent indigent clients and paid them a flat rate of about $2,400 a month.
Bromgard, who was 19 years old when convicted, said he believed in the system and trusted Adams. He thought he'd be acquitted.
Depositions examined by the Gazette include those of Bromgard, former commissioners Dwight MacKay and Conrad Burns, former Judge Diane Barz and Judge Todd Baugh, who presided at Bromgard's trial, and Allen Beck, an attorney who represented indigent defendants in the 1980s.
Under questioning by Schwarz, Bromgard said he met with Adams only a few times before trial.
The first words Adams spoke to him at his arraignment were, “ ‘Plead guilty. I'll get you a plea bargain,' ” Bromgard said. “I don't know if that's the kind of thing he used to always do or what. And I told him no. He said, ‘Are you sure?' I said, ‘I'm not pleading guilty.' He said ‘OK,' and he pled not guilty for me.”
Adams arrived for trial with an empty notepad, called none of the character witnesses Bromgard had suggested, or any expert witnesses, Bromgard said. “He called my mother and my stepfather only because they were in court and told him they wanted to be called.”
After he was convicted, Bromgard heard from prison inmates that Adams' nickname was “Jailhouse John” because “nobody walked,” he said. “When John represented them, they all went to prison.”
Adams and Bromgard didn't talk much during trial. “We didn't discuss anything. He didn't ask me anything, and I didn't know I had to volunteer anything. I didn't know anything at the time,” he said.
Schwarz questioned Bromgard about whether he felt pessimistic or optimistic while awaiting a verdict. “Back then, I still believed the system worked, so I believed if you didn't do something, you wouldn't be found guilty,” Bromgard responded. When the verdict was guilty, Bromgard said he was surprised. “I was speechless. I didn't know what to say.”
Bromgard believed Adams was competent. “I had no idea what I was doing,” he said. “I thought he had it all under control.”
At sentencing, Adams told the judge he would appeal, Bromgard said. He never saw Adams again. Bromgard learned much later that his appeal was dismissed because Adams had not filed a brief. Bromgard was allowed to file another appeal and his conviction was upheld until DNA evidence cleared him in 2002.
MacKay, now U.S. marshal for Montana, was a Yellowstone County commissioner at the time of the Bromgard trial. He told Bromgard's attorney, Ron Waterman of Helena, the county was responsible for funding district court, including indigent defense, through a mill levy. The county, however, had nothing to do with the court's operations.
MacKay acknowledged he understood the importance of having an adequate defense to protect the rights of indigent defendants. But, he continued, he had no idea how the judges hired, supervised or set pay for the attorneys. He couldn't recall ever having discussed indigent defense with the judges.
MacKay said he assumed there was some kind of contract between the judges and the attorneys, but never saw one.
Waterman asked MacKay if he knew how the judges carried out their responsibilities with indigent defense or if the judges understood they had been delegated authority for the program.
“I haven't got a clue what they did,” MacKay answered.
The former commissioner said that because of the public defender system that was in place in the 1980s, he did not feel any responsibility for Bromgard's wrongful conviction.
Burns, who was a county commissioner for two years before being elected to the U.S. Senate in 1988, said he could not remember talking to the judges about indigent defense or seeing an employment contract. He was not involved in any hiring, never asked whether there were any job criteria and didn't know how wages were determined.
When Waterman asked if the public defender issues were beyond Burns' focus, Burns answered, “It was beyond the grasp of my role. And if there had been any doubt in my mind, I would have sought outside advice, I think.”
Both MacKay and Burns said they knew John Adams, but not well, and were unaware of any complaints about him.
From the judges' side, Barz and Baugh indicated they were uncomfortable appointing and supervising the lawyers for poor defendants because as judges, they had to be independent.
Barz, who was chief judge at the time and is now retired, said there was nothing formal in how the judges supervised or evaluated the performance of attorneys. There was no evaluation of the caseload.
“You know, we felt that was a big no-no. You know, we were most uncomfortable with the idea that we had to have anything to do with it in the first place,” she told Waterman.
Baugh agreed. “It just didn't seem like the thing we ought to be doing,” he said. “When you lose a case, which most often happens in a criminal case because most of them are guilty, or they wouldn't be charged in the first place, then it gives the appearance that maybe you didn't do what you should have done in appointing that attorney.”
Baugh described a hiring system in which there was no written job description and the judges relied on their own knowledge. “We knew who the attorneys were. We knew who could try a case and who couldn't try a case. And so, you know, our standards were our knowledge of the bar, of the attorneys in the bar,” he said.
The commissioners never gave the judges any direction that they expected the judiciary to run the indigent defense system, Baugh said.
Baugh didn't pay attention to the budget process and couldn't remember how indigent defense funding was determined. “I always figured that whatever we needed the county or the state - county at that time - would fund it,” he said. “Like I said, I had very little interest in the budget process.”
Neither judge had complaints about Adams' work. But Barz called him “kind of a pest” because he was always in their outer office or in the library. Judges would sometimes look for him in the Empire Bar where he liked to play cards, she said, though “he was never a drinking man.”
When Barz left office in 1989, Adams was in his mid-60s and had diabetes, she said. “I think he just kind of faded away. But during the time I was there, you know, he was front and center.”
Baugh had no problems with how Adams practiced law or his ability to handle complex cases. Adams did “a pretty good job” defending Bromgard, he said.
“My recollection, when I went back and read the transcripts, was that he had done just fine, and that there wasn't any big problem with his cross-examination or argument or his examination, that he seemed to do a good job,” Baugh said. “Obviously, in this particular case, we ended up with a wrong result.”
Attorney Allan Beck, who practices in Lewistown, served as a public defender in Yellowstone County for 11 years starting in 1980 while maintaining a private practice. Beck, a former assistant judge advocate general in the Air Force, worked with Adams.
At some point Adams began to decline, he said. Adams was not as prepared and asked him to assist in more and more cases or to take over his cases, Beck said.
There were times when he had to nudge Adams to wake him during court, Beck said. Adams may have been falling asleep because he would stay late playing cards at the Empire Bar, he said. Although Beck thought Adams lost a lot of confidence, he said Adams was still effective in front of judges.
Beck began representing poor clients for the county when Barz invited him to apply for the job to fill an opening, he said. Barz reminded him that he had been critical of public defense work.
His criticism, he said, was that he heard complaints from people in jail about lack of contact by attorneys. Beck interviewed with then-Judge Charles Luedke and had an oral agreement for defense work.
No one from the county supervised him, and the judges did not supervise him any more than any other attorney, he said.
No one evaluated his performance.
“There would only be from time to time comments by a judge about a particular case,” Beck said. He had no contact with the county commissioners and did not participate in budgeting for indigent defense.
When he quit, Beck said he brought to the attention of Yellowstone County how the magnitude of the caseload interfered with his ability to effectively represent some of his clients. He got cases continued when he needed more time.
“I felt that the judges, the prosecutors and the defense counsel, which the public defenders did the bulk of the criminal work, were working hard and well, and for the most part, cooperatively,” Beck said. “I don't know if I quit in 1991 because I was overwhelmed, or because I was burned out, so my perception may be skewed.”
Missoulian reporter Tristan Scott contributed to this story.
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)