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Judge scuttles fatal DUI case over errors, delays

Judge scuttles fatal DUI case over errors, delays

Prosecution delays and a judge’s error have led to the dismissal of charges in a drunken-driving crash that killed three people in Petroleum County.

District Court Judge E. Wayne Phillips dismissed the case against Troy Jay Child because more than four years passed between the Sept. 15, 2005, wreck and the date set for trial.

“Stepping back and viewing the entirety of the delays in this case, the Court cannot help but being struck by the total of 1,605 days of delay,” Phillips wrote in a 15-page order. “That is reprehensible.”

The judge was responsible for some of the delay.

His decision will not be appealed, an official said.

“I don’t know how to describe it,” said Nancy Nelson, whose son, Jim, died in the crash. “We’re just totally aggravated over the whole deal. It’s been one nightmare after another since the wreck.”

Child was accused of being behind the wheel of Jim Nelson’s 2003 Chevrolet pickup when it went off Highway 200 at a curve east of Winnett and then rolled.

The force of the crash separated the cab and front fenders from the frame of the pickup.

Investigators determined that the truck was traveling 20 mph over the posted speed limit and that all four people inside were intoxicated, according to documents filed by Petroleum County Attorney Monte Boettger.

Three people were ejected from the truck and died at the scene. They were Donald Schmidt, 61, and his son Dean Schmidt, 35, of Mandan, N.D., and Nelson, 33, of Hungry Horse.

A passer-by found Child in the truck’s cab. Child told two people on the day of the crash that he had been driving but later said that he did not remember anything that happened after the men left a bar in Winnett, court records say.

Boettger charged Child with three counts of vehicular homicide and one count of perjury, all felonies, on Feb. 19, 2008.

He inherited the case when he took over as the Petroleum County attorney in August 2006. The previous prosecutor apparently had decided not to file any charges against Child.

“We got it and felt it needed more investigation because it was a triple fatality,” Boettger said.

Six months after Child was charged, Phillips dismissed the case, claiming that Boettger had missed a deadline to file a brief. But the prosecutor was following a schedule set by Phillips and successfully appealed the dismissal to the Montana Supreme Court.

More than eight months passed between the time that Phillips improperly dismissed the case and the time the Supreme Court reversed the dismissal. After the reversal, the soonest the case could be fit into the judge’s trial calendar was 10 months away.

Phillips dismissed the case for the second time after Child’s public defender, Douglas Day, filed a motion claiming Child’s right to a speedy trial had been violated.

“It’s an unfortunate situation,” Boettger said. “I feel especially bad for the victims. The system has failed them.”

Day declined to comment on the case.

The state attorney general’s office, which handles appeals to the Supreme Court, has decided against appealing Phillips’ second decision to dismiss the case, Boettger said.

“I don’t know what words to use,” Nancy Nelson said. “It was totally wrong from the get-go.”

Contact Diane Cochran at or 657-1287.


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