Yellowstone County was not responsible for the legal defense provided to Jimmy Ray Bromgard, a former Billings man who spent more than 15 years in state prison for a rape he did not commit, an appellate court ruled Thursday.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said, “The evidence demonstrates that the County was not in a legal or de facto position to hire, supervise, remove or set the compensation of defense attorneys for indigents in 1987.”

The two-page ruling affirmed a finding by Chief U.S. District Judge Richard Cebull, who concluded that the state of Montana, not the county, was responsible for providing Bromgard an adequate defense.

The appellate judges heard oral arguments on Nov. 3 in Portland, Ore.

“We’re very pleased with the court’s decision and rationale,” said County Attorney Dennis Paxinos. “It’s exactly what the county has been arguing for years. That it was a state problem. That it was a state issue. That the county had no responsibility. And that’s been affirmed by the Ninth Circuit.”

Bromgard’s attorney, Ron Waterman of Helena, said, “We are very disappointed in the outcome of the panel’s decision. We are evaluating our options.”

Bromgard may seek a rehearing or may ask the court to take the case to a larger panel of appellate judges for further evaluation, Waterman said.

The ruling was issued only 16 days after the hearing. Judges typically issue opinions four to six months after a case is submitted; county officials were expecting a ruling early next year.

Bromgard was convicted in a 1987 jury trial on charges of raping a child. He was represented by the late John Adams, a court-appointed private attorney who represented indigent defendants. Bromgard served 15ƒ years at Montana State Prison before he was exonerated in 2002, when DNA testing using new methods found he did not commit the rape.

His conviction was based largely on hair evidence analyzed by former state crime lab director Arnold Melnikoff. Melnikoff and his evidence have since been discredited.   

Bromgard sued the state and the county in 2004, alleging that his rights were violated. He sought $16.5 million in damages. Bromgard settled his claims against the state for $3.2 million, which is the largest amount Montana has ever paid to settle a rights case.

In his claim against the county, Bromgard, who lives in Kalispell, alleged that the county violated his Sixth Amendment right to effective assistance of counsel. Bromgard’s attorneys called Adams’ defense “grossly inadequate,” saying Adams did little investigation, called few witnesses at trial and did not appeal the verdict.

On appeal, a key issue raised by Bromgard was whether the county was liable for injuring Bromgard through its “policy, practice and custom” of providing constitutionally inadequate representation to criminal defendants in 1987.

The appellate panel ruled that for inaction to be deliberate indifference toward constitutional rights, it must be the result of a deliberate choice of inaction made “from among various alternatives.” The county was not in a legal position to hire or supervise defense attorneys for indigents, and therefore, the “county’s inaction cannot amount to deliberate indifference,” the court said.

The county maintained the state was responsible for providing attorneys for indigent defendants. The county paid the attorneys and was reimbursed by the state.

Chief Deputy County Attorney Dan Schwarz said there was no evidence the county commissioners ever talked to the attorneys who represented indigent defendants.

Cebull agreed with the county. He ruled last December that state district judges controlled court-appointed counsel under the system at the time and that the county merely paid attorneys chosen by the judges.

The legal battle between Bromgard and the county has cost the county an estimated $35,000 in expenses, not including salaries. Schwarz and the county’s civil division attorneys and staff defended the case.      

Bromgard’s multimillion-dollar claim was one of the biggest in the county’s history, Schwarz said. Had the county lost, any monetary judgment or award would have come directly from county taxpayers through a bond because the county was self-insured in 1987.   

“We understand Mr. Bromgard was convicted of a crime he didn’t commit,” Schwarz said. “The county does wish him well.”

Related

• 9th Circuit judges hear Bromgard appeal
• Bromgard appeals ruling that favored county
• Judge finds county not liable in '87 case