For the first time since a DNA test exonerated Jimmy Ray Bromgard in 2002, Montana Supreme Court Chief Justice Mike McGrath said the man could be innocent of the 1987 rape of an 8-year-old Billings girl for which he had spent nearly 15 years in prison.
McGrath, who was attorney general at the time, came under fire in 2007 for comments he made during a related civil suit filed by Bromgard. In a seven-hour deposition on Sept. 29, 2006, McGrath posited theories that the exonerated Bromgard, or the victim’s family, could have been involved in the rape.
Now, Yellowstone County prosecutors say DNA has tied a different man to the crime, issuing a summons for Ronald Dwight Tipton, 55, of White Sulphur Springs, to face charges in court on Dec. 14.
On Friday, McGrath defended his actions in the Bromgard case, asserting that some of the comments have been taken out of context. But he allowed that the new evidence could convince him of Bromgard’s innocence.
“I am the person that let him out of prison,” McGrath said. “I filed the motion. We thought there wasn’t sufficient evidence to convict Mr. Bromgard, and I filed the motion to release him from prison. … Obviously, if this DNA hit is a good hit, then it proves that Mr. Bromgard was innocent, and I’m glad we agreed to let him out of prison.”
McGrath suggested in the 2006 deposition that the semen collected in the original investigation “could have come from multiple different sources.” He said the possibilities included that the 8-year-old girl had been sexually active with someone else; or she had been wearing the underwear of her 11-year-old sister who might have been sexually active; or the parents had sex on the girl’s bed; or that the father had committed the crime.
Peter Neufeld, an attorney who represented Bromgard during his exoneration and a founder of the national Innocence Project in New York, asked McGrath if the father could have had an incestuous relationship with his daughter, according to a 248-page transcript of the deposition.
“Could have. Let me just say this. In my experience as a prosecutor, none of those theories is far-fetched. All of those are possible,” McGrath said, according to the transcript.
On Friday, McGrath said he did not remember implicating the father, something he said he would never do, and suggested the remarks had been “misconstrued.”
“The point those comments were addressing was that the case was still,” he said, pausing. “There was not an identified suspect. A suspect had not been identified, and of course that’s changed now apparently.”
Bromgard’s attorneys and the victim’s family were among those who said they were upset by the suggestions, while a Chicago Tribune story lined up national legal and forensic science experts to critique McGrath’s statements as “hyperextreme” and “troubling.” The former Lewis and Clark County prosecutor had just announced his candidacy for an open seat on the state Supreme Court, which he secured with 75 percent of the vote in November 2008.
Ron Waterman, a Helena attorney who represented Bromgard during the civil suit against the state that secured a $3.5 million settlement, had expressed frustration that state officials would suggest Bromgard was actually guilty, undermining the public’s faith in his exoneration.
Upon hearing McGrath’s comments Friday, Waterman said it “doesn’t benefit anybody” to get into a debate over comments made nearly a decade ago.
“To the extent that the state owed Bromgard an apology, and they certainly did, Judge (G. Todd) Baugh when he granted the motion to release Jimmy extended an apology to him. And although it was a struggle, nevertheless, the outcome of the litigation in the end, I think, serves as a relatively strong apology to Jimmy for what happened,” Waterman said. “The truth of the matter is there’s no way of giving Jimmy Bromgard back the number of years he spent at Montana State Prison. That component of his life is lost forever.”
Instead, Waterman suggested state leaders continue their work to act on lessons learned from Bromgard’s wrongful conviction. Among the improvements, he listed the accreditation and bolstered funding of the state crime lab as well as the creation of the state Office of Public Defender, although its staff remains stretched thin and is under review by a legislative interim committee.
“That may be the best apology of all,” he said. “To say that this case brought us up short. We recognized the deficiencies in the entire criminal justice system and are taking steps to address those decisions and to make sure this doesn’t happen again.”