It's not every day, for instance, that someone introduces the Helena-based justices by asking who in the gallery had never watched them in action before.
Peggy Tonon of the University of Montana law school did just that Friday morning.
“That's, like, all of you,” she said with a smile.
Tonon explained the different levels of the judicial court system. As she got to local jurisdictions, she asked for another show of hands - by those who've had traffic tickets.
More than half the court watchers responded, and chuckled themselves.
“I have to say I don't think I've ever seen the theater this full for a Supreme Court argument,” Tonon concluded, after giving the young crowd a quick lesson in court etiquette: Stand when the clerk of court announces the seven justices, take off hats to show respect for the court, turn off cell phones and beepers.
While it was a new experience for most of the crowd, it was a much-anticipated one by the court, said Chief Justice Karla Gray.
“We look forward to these events very much every year. It's a highlight on our yearly calendar,” she said. “We get to get out of our offices and be around lots of real people, have fascinating conversations.”
Then they got down to business.
The argument before the court was a question of double jeopardy.
Did the conviction in Yellowstone County in 2006 of 18-year-old Rusty Lee-Ray Russell for both the homicide of John Gewanski, 65, and the underlying aggravated assault of another man constitute double jeopardy?
Defense attorney Koan Mercer maintained yes, that the two offenses merged and to be sentenced for both is punishment twice for the same crime.
John Paulson, Montana assistant attorney general, cited many of the same precedental rulings and argued the underlying assault is a separate crime than murder.
The case stems from an incident behind a thrift store in downtown Billings in April 2005. According to court documents, Russell and another 18-year-old, Brandon Spotted Wolf, were walking to the north side of town after a night of heavy drinking.
Spotted Wolf saw a sleeping transient, 64-year-old Dale Wallin, and began harassing him. When Wallin said he had no money or alcohol, Russell pulled out a knife and gave it to Spotted Wolf, who slashed Wallin's face, cutting his cheek.
Spotted Wolf gave the knife back to Russell and challenged him to “show me what you're made of, man.” Russell stabbed Wallin several times in the back before the two left Wallin and approached another sleeping transient, Gewanski.
Russell had the knife and “began hitting and cursing Gewanski,” records state. The men then caught up with Wallin, and Russell assaulted him again before another man intervened.
Russell and Spotted Wolf ran from the scene. Gewanski died of stab wounds on the spot. Wallin made it to the nearby rescue mission and was taken to a hospital, later recovering from his wounds. He died last May, a victim of a hit-and-run accident in La Crosse, Wis.
After his arrest, Spotted Wolf admitted to the attack and was sentenced in October 2006 to 50 years in the Montana State Prison.
Russell was convicted on four counts: deliberate homicide, aggravated assault, aggravated assault by accountability and robbery by accountability.
He received an 80-year prison sentence for the homicide, plus three 10-year sentences for the assault and robbery charges, to be served consecutively to the murder sentence.
Russell made a motion to dismiss the aggravated assault charge that served as the underlying felony for the murder charge. The 13th District Court in Yellowstone County denied the motion, and Russell appealed it to the state Supreme Court.
Mercer made the case for double jeopardy Friday in front of six of the seven justices. Gray said Justice James Nelson was unable to make the Missoula appearance, but would listen to tapes of the arguments and take part in a decision.
Mercer spoke and answered questions from the justices for most of his 40-minute allotment. He argued that Russell's sentence should be vacated and a new trial held, or the sentence for aggravated assault of Gewanski should be vacated.
One way or the other, Mercer pointed out, his client will be spending much of his life in prison.
He cited previous state court rulings to argue that the Montana double jeopardy clause provides greater protection than does the Fifth Amendment of the United States Constitution.
Paulson had 30 minutes to present the state's case, and he used them all.
Justice John Warner asked Paulson if a person is convicted and given a sentence that amounts to 100 years to life without parole, what is the interest of Montanans to resist dismissing an underlying felony for another 10 years?
“The state's interest is that in appropriate cases the district judge can impose sentences for separate offenses, and has a sentencing range that will reflect what, in the judge's view, is appropriate for the defendant's conduct,” Paulson said.
“I think it's important for the courts to be able to say, if you commit Š two crimes, you have to be held accountable for both and pay the price.”
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