Flathead County Commissioner Phil Mitchell, who destroyed a grove of cottonwood trees on a public park along Whitefish Lake, pleaded guilty Friday to misdemeanor criminal mischief and was sentenced in a case defense lawyers described as “a political prosecution,” while a special prosecutor called the elected official’s behavior “outrageous.”
By the end of the 60-minute hearing before Ninth Judicial District Court Judge Robert Olson — who presided over the case after five other judges recused themselves due to potential conflicts with an elected official whose authority includes the county courthouse in which he was prosecuted — both sides agreed the resolution was fair and equitable.
Following a plea agreement that reduced the charge from a felony to a misdemeanor, Judge Olson handed Mitchell a six-month suspended sentence in the Flathead County jail and ordered him to pay $16,000 in restitution, a transaction Mitchell said he completed Thursday, handing the money directly to Flathead County Parks and Recreation to repair the damaged property.
According to court records, on July 11, 2017, a Flathead County Parks and Recreation Department employee found five dying or dead cottonwood trees in a half-acre county-owned park known as Lake Park Addition just south of Whitefish Lake State Park. The trees appeared to be girdled, a tactic that involves removing a thick strip of bark ringing the tree’s circumference, causing the tree to die.
Assistant Attorney General Dan Guzynski, who was recruited as special prosecutor to avoid conflicts of interest with the Flathead County Attorney’s Office — whose office also falls under the commission’s authority — took care to explain how attorneys arrived at the plea agreement, a development that recently raised the ire of Sheriff Chuck Curry, who publicly called it “embarrassing.”
But Guzyinski said the agreement was carefully crafted and included input from Flathead County Parks and Recreation Director Jed Fisher, whose primary concern was restore the tiny lakeshore park that is administered by the county department.
“My world is to restore the public’s asset with respect to planting trees,” Fisher said.
Guzynski explained that had the case gone to trial as a felony, the jury would have heard evidence from separate cottonwood experts with disparate opinions on whether the trees were alive or dead at the time of Mitchell’s actions. He said jury instructions would have featured a “lessor included offense,” meaning in the event jurors were unable to reach a unanimous verdict on the felony charge, the judge would have instructed them to consider a misdemeanor.
Had they moved to convict on the “lessor included offense,” Guzynski said the conviction at trial would have capped the loss at $1,500, rather than include the mandatory $16,000 restitution that’s part of the plea deal.
Facing the risk of not meeting the state’s burden of proof at trial, Guzynski said a plea agreement requiring restitution was the safest and most appropriate course of action.
“When I involved myself in this case I was outraged by the conduct of Mr. Mitchell,” Guzynski said. “But when I am thinking about putting this case in front of a jury, it only takes one juror to say this is over-charged and move on to the lessor included offense. And that would have capped the damages at $1,500.”
Fisher, who said the parks and recreation board members endorsed the agreement, agreed with Guzynski.
“The concern was that we would not be able to make the park whole for our users,” he said. “Sixteen-thousand dollars is not something we come by often.”
Mitchell’s defense attorneys, Sean Frampton and Todd Glazier, in pre-sentencing motions, wrote that the trees their client was charged with killing by “girdling” were already dead, and hired a well-respected cottonwood expert to say as much.
But to those watching from the full courtroom gallery, the case was either a politically charged prosecution or an example of someone abusing a position of power and obtaining a sweetheart deal — sentiments that both rose to the fore recently when news of the plea agreement broke.
In a statement sent to the Beacon following sentencing, Mitchell said he acknowledged breaking park rules and was forthright with parks officials investigating the damaged trees. However, he said the “escalation of charges to felony status was never supported by the facts,” and “was sought by those with whom I disagreed on other matters while in my service as a County Commissioner.”
“Sheriff Curry’s comment that he was embarrassed by this plea deal is laughable,” the statement continues. “He should be embarrassed that his department recommended felony charges without investigating whether the trees were already dead.”
After he was charged Aug. 31 with felony criminal mischief, Mitchell issued a written apology to county staff for destroying the trees and offered to pay for their replacement. He said he destroyed the cottonwoods because they were a nuisance and frequently dropped limbs onto his adjacent property.
Mitchell, a former member of the Whitefish City Council from 2010 to 2013, was elected to the Flathead County Board of Commissioners in 2014.
In a strongly worded interview with the Beacon, Curry said he was “embarrassed to be part of the criminal justice system.”
“When you are a public official and you commit a crime against the public that you represent you should be held responsible and that clearly has not happened in this case,” Curry said.
Judge Olson addressed the notion that politics were influencing the case.
“I don’t know whether or not this is a political prosecution, but one thing we can’t deny is that politics is involved because you are a county commissioner,” he said. “With that position comes certain responsibilities to members of the public. And one of those responsibilities is that you not intentionally destroy their property. They have every right to hold you to a very, very high standard, maybe a standard that they wouldn’t hold someone else to because you are a county commissioner. You took on that responsibility.”
Still, Olson said he would administer justice to Mitchell just as he would to anyone else.
“It’s not who you are in this courtroom, it’s what you did, and that is what I will look at in imposing this sentence,” he said. “This sentence is appropriate.”