Polak trial

Joseph Richard Polak listens to testimony during his retrial in a 2015 shooting case in Yellowstone County District Court on Tuesday, April 9, 2019.

A Billings man twice convicted of fatally shooting an acquaintance at a Heights trailer park in 2015 won’t get a third trial, a judge has ruled.

Joseph Richard Polak II, 37, was convicted in April of deliberate homicide in the death of 29-year-old Scott Hofferber on April 28, 2015.

It was Polak’s second trial, after the Montana Supreme Court ruled he had been wrongly denied a chance to question whether a key witness in the first trial was under the influence of methamphetamine at the time of the shooting and could recall the event accurately.

Polak was set to be sentenced in August, but that was delayed when defense attorney Jami Rebsom wrote in her sentencing memorandum that she believed a juror had broken the rules.

Rebsom cited a Facebook post made by the juror after the trial concluded, noting that the trial held this spring was Polak’s second.

That information was kept from jurors in order to ensure a fair trial. Rebsom argued the fact that the juror knew it was Polak’s second trial meant he had done research online about the case, which violates the jury instructions.

Judge Rod Souza held a hearing on the allegation, where the juror said he had deduced it was a second trial based on the phrasing of questions, and did not read news coverage of the trial while it was underway. He also said that he told no other jurors it was a retrial, and the fact that it was didn't change his decision to support a guilty verdict. 

Rebsom asked for a new trial for her client, but in an order dated Oct. 23, the judge denied the request, saying the juror hadn't broken any rules. 

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Souza noted that the Facebook post was written in the hours after the jury announced its verdict and not while the trial was underway.

The judge also cited state and federal precedent saying the justice system depends on jurors following instructions, and that judges must presume they do.

Sentencing has been set for November.

Rebsom is asking for 20 years in prison, with 10 suspended. She’s also seeking to toss the weapons enhancement, which carries between two and 10 years in prison, but said if the court will not set aside the weapons enhancement, then she would request the minimum two years.

Prosecutors will ask for 90 years in prison.

Polak is serving a 10-year sentence for criminal endangerment, which was not overturned in the Supreme Court order granting a second trial. That charge stemmed from Polak’s arrest, which took place two days after Hofferber was killed. Polak tried to avoid arrest by ramming his car into a patrol car and reversing into a marshal’s vehicle.

After his first trial, Polak was sentenced to 80 years in prison. 

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