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Supreme Court Examines Whether ‘Structural Errors’ Spoiled Flathead County’s Jury Pool

Defense attorneys for a Whitefish man awaiting a deliberate homicide trial argue that Flathead County’s jury selection process does not comply with Montana law, impeding the right to a fair and impartial jury

By Maggie Dresser
The Flathead County Justice Center in Kalispell. Beacon File Photo

The Montana Supreme Court is reviewing a Flathead County criminal case awaiting trial to determine whether an alleged structural error in the jury selection process undermines the defendant’s right to a fair and impartial trial.

Attorneys representing Steven Justin Hedrick, a 33-year-old Whitefish man preparing to stand trial for deliberate homicide in Flathead County District Court, argue that the clerk of court did not follow proper protocol when she failed to follow up with residents who don’t respond to their jury notices. The attorneys have petitioned the Montana Supreme Court for a writ of supervisory control, asking the high court to intervene in the case and determine the next steps.

Chief Justice Mike McGrath ordered that Hedrick’s motion be taken under advisement, which allows him to review the case and decide if the jury selection process in Flathead County impedes his right to a fair and impartial trial. He required the attorneys to submit their briefs on the matter by Oct. 16.

According to the petition, Hedrick and defense attorneys Sean Hinchey and Lane Bennett allege that a structural error occurred in the jury selection process because Flathead County Clerk of Court Peg Allison did not “substantially comply” with Montana code by not “following up” with prospective jurors who failed to respond to their jury notice.

“The issue is the statute that’s referenced in the documents requires that if somebody doesn’t send back their jury questionnaires, the clerk of court is supposed to direct the sheriff to make some attempts to find that person,” Hinchey told the Beacon. “For the longest time, that wasn’t happening and the people that didn’t respond would get tossed aside and the jury pool would just be made of people who did respond.”

In an affidavit filed by Allison, jury notices were mailed to 7,000 jurors on July 28 for Hedrick’s Sept. 18 trial. Of the jurors who responded with questionnaires, a panel on Aug. 28 was randomly drawn.

But on Aug. 31, Flathead County District Judge Amy Eddy, who is presiding over the Hedrick case, issued an order directing the Sept. 18 panel to be vacated and re-drawn using “both statuses available with questionnaire and available without questionnaire,” the affidavit states.

By Sept. 6, a pool of 200 jurors drawn from both these two categories was randomly drawn and summoned for selection on Sept. 25 – Hedrick’s new trial date – and a list of 1,914 jurors who had not responded was certified to Flathead County Sheriff Brian Heino for personal service.

“The process summons for trial is pulling people that have either submitted a questionnaire or have not responded at all to the notice,” Allison told the Beacon. “Those two groups of people need to be involved when you pull a panel and when you summon jurors for a specific trial. That’s why the sheriff’s office is personally serving people who have never responded.”

According to a document filed by Judge Eddy, the problem of juror compliance is not unique to the Flathead. On Aug. 22, Eddy explained, the court learned that Cascade County had vacated all criminal and civil jury trials until Sept. 25 due to “irregularities in the jury selection process” in violation of a Montana code that lays out jury selection protocol. This triggered the court’s concern with Flathead County’s compliance with the statute.

After Judge Eddy ordered the jury panel be re-drawn for Hedrick’s trial, his defense team filed a motion to strike the Sept. 25 jury panel, arguing that the sheriff’s office made no effort to serve 532 jurors with notices and that they should be placed in the jury pool.

Flathead County Attorney Travis Ahner did not object to the motion to strike the panel, but Judge Eddy denied the motion. Following the denial she ordered the trial be stayed to allow the Montana Supreme Court time to rule on the writ of supervisory control.

“A writ is typically a fairly extraordinary remedy – you are asking the Supreme Court to get involved before it’s over,” Hinchey said. “In a writ, you are asking the court to step in during the course of the case and most of the time, they say no.”

While Flathead is the only county to petition the high court for a decision, Hinchey said jury trials in Cascade and Yellowstone counties have been dealing with similar jury selection issues.

Additionally, the jury panel issue has impacted cases that have already gone to trial, defense attorneys say, including in the case of Jonathan Shaw, who was convicted of deliberate homicide in July.

In that case, defense attorneys Colin Stephens and Paul Simon filed a motion for a new trial, arguing that the jury was “improperly drawn” because Flathead County officials did not enforce responses from the individuals who ignored jury notices. Those who failed to respond to the notices were removed from the jury pool, which violated the defendant’s right to a fair and impartial jury, according to the motion.

In Shaw’s case, Flathead County District Judge Dan Wilson on Sept. 12 ordered that Shaw’s sentencing hearing, which was scheduled for Sept. 21, be vacated and reset following his ruling on the motion.

Sheriff Heino said that the failure to follow up with potential jurors has been a statewide issue for years.

Until recently, Heino said he had not received any lists of jurors from the clerk of court that his office was expected to serve. Now, he’s sending his deputies to track down hundreds of individuals to hold them accountable for jury duty – but he’s run into some obstacles along the way.

“To be blunt, it’s a pretty big lift,” Heino said. “We’ve already got a lot going on in the county.”

Heino said many addresses are P.O. boxes while other addresses are located at businesses like marijuana dispensaries. He’s also had to call in extra staffing to track down potential jurors.

To encourage folks to respond to jury notices, Heino says he hopes to provide more outreach efforts to educate the public about responding to jury summons.

“We’re doing our due diligence and we are processing those lists as fast as we can,” Heino said.

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