Thursday, December 7, 2017

A Horrific Cautionary Tale

I came across a terrible story told in a decision  of the Montana Supreme Court affirming an order allowing a criminal defendant to withdraw his guilty plea.

The case involved highly-charged allegations of child sex abuse

David and Sunnshine Welton are both dentists and owned Montana Family Dentistry in Lewistown, Montana. They have two children: a girl, L.W. and a boy, M.W. Dana and Jason Terronez are nurses and worked at Central Montana Medical Center in Lewistown. They have four children: three girls and one boy. Dana and Terronez were patients at the Weltons’ dental clinic and the families became close friends—sharing meals, weekend gatherings, and holidays.

Sunnshine was sexually abused as a child, which made her apprehensive about letting her children participate in sleepovers with other families. She described herself as a “paranoid” mom who is hypersensitive about sexual abuse issues. As a precaution, Sunnshine educated her children about “good touch” and “bad touch” and initiated such conversations with them every six months. However, she trusted Terronez and Dana, and had permitted her daughter, five-year-old L.W., to sleep over at the Terronez household prior to the incident in question. On March 7, 2015, she again allowed L.W. to sleep over at the Terronez residence. L.W. watched a movie with Terronez and his three girls, including Terronez’ oldest daughter, nine-year-old A.T. Dana was in and out of the living room while the others watched the movie, during which Terronez was seated next to L.W. After the movie, Dana asked L.W. if she wanted to go home, and L.W. said she wanted to stay at the Terronez household.

The alleged abuse took place that night.

The case was a great burden for the young defense attorney

Terronez was initially represented by attorney Craig Buehler, but on April 6, a notice of substitution of counsel was filed indicating that Jeffry Foster had assumed representation of Terronez. Foster filed a motion for change of venue, arguing a reasonable apprehension existed that Terronez could not receive a fair trial in Fergus County because of: (1) the small size of the Fergus County jury pool; (2) the heinous nature of the crime; (3) both families’ relationships and standing in the community; (4) statements about the case made by the Weltons to others in person and on social media; and (5) concerns expressed by court staff and law enforcement about Terronez’ safety. The District Court denied the motion, but stated the matter would be reconsidered if concerns arose during voir dire.

Foster suffered a verbal "tongue lashing" from Sunnshine and things got worse

On Friday, September 25, at another in-chambers conference with the same parties, Officer Jenness reported to the court that, sometime during the previous evening, a large chunk of concrete had been thrown through the windshield of Foster’s vehicle while it was parked outside the Terronez household.

And worse

 On Monday, September 28, the court held a conference in-chambers with Terronez, Foster, Adams, County Attorney Thomas Meissner (substituting for Boettger), Undersheriff Vaughn, Officer Jenness, and Sheriff Troy Eades. The purpose of the conference was for law enforcement to provide an update on security measures and concerns. Eades commented on the concrete block thrown through Foster’s windshield, indicating in his years securing “several trials in this county,” he had not seen anything like this and noted that tensions were “relatively high.” He suggested Terronez and Foster wear bulletproof vests, and advised the parties they would be required to submit to a metal-detector wand inspection prior to entering the courtroom. Sheriff Eades also updated the court on security measures at the Terronez household. The court cautioned everyone to be “vigilant,” and to pay attention to “the people that are coming and going.” That evening, although Foster had checked into the Yogo Hotel and rented a new vehicle to avoid detection from the Weltons, the Weltons encountered Foster in the hotel’s restaurant.

The defendant then took the plea in this atmosphere and

Prior to the change of plea hearing, Deputies and Lewistown Police officers cleared the courthouse and were posted in plainclothes and in uniform throughout the building. During the hearing, the court informed Terronez of the rights he was giving up and Terronez confirmed verbally and in writing that he was giving a knowing, voluntary, and intelligent plea. Terronez apologized to L.W. in accordance with the plea agreement and the proceeding concluded. Foster drove back to the Yogo Hotel with a police escort. Tragically, in the early hours of the next morning, Foster committed suicide in his hotel room.

The defendant with new counsel sought to withdraw the plea and the motion was granted

Although the District Court primarily based its decision on ineffective assistance of counsel, it also based its decision on a “pervasive air of fear” surrounding the trial that had impacted the proceedings and Foster’s performance, highlighting the incident of the concrete block thrown though Foster’s windshield, as well as several alleged incidents of the Weltons’ threats, stalking, and confrontations. The court observed that these events “objectively appeared to have a serious deleterious effect on [Foster],” who appeared “disheveled” and “overly anxious” (sweating profusely, running his fingers through his hair stammering, pacing, repeating himself, etc.). This behavior was, from the court’s perspective, “very uncharacteristic of counsel,” and led the court to have “serious doubts about his effectiveness at trial and up to and including the Defendant’s guilty plea.” Similarly, the court noted Foster was uncharacteristically deficient in cross-examination, and did not mitigate the harmful effects of witness testimony. The court also noted that Foster appeared indecisive on strategy decisions, and described his demeanor after the concrete block incident and before the plea agreement was reached:

[C]ounsel appeared visibly distraught and fearful for himself as well as the Defendant and the Defendant’s family. His behavior became somewhat erratic. For example, the defense had made it known early on that they would be presenting a full defense including evidence of the Defendant’s good character and would be calling numerous character witnesses in that regard. The defense also notified the Court and counsel that it would be calling the Defendant’s wife and children to testify regarding the alleged assault. Then, suddenly and rather unexpectedly and in the midst of trial, former counsel flatly told the Court and counsel that the defense was abandoning its good character defense and would not be calling the Terronez children to testify. A short while later, counsel returned from lunch and promptly announced once again that the defense would be presenting a full defense including evidence of the Defendant’s good character. Mere moments later, the parties notified the Court that they had reached a plea agreement.

Based on ineffective assistance and the threatening atmosphere surrounding the proceedings, the court concluded that “good cause” was established for allowing Terronez to withdraw his plea. The State appeals.

The court did not find ineffective assistance but

...we affirm the District Court’s finding that good cause existed for withdrawal of Terronez’ plea on alternative grounds discussed in the District Court’s order, based on the extreme events that occurred during the proceeding.

The District Court, referencing Sherwood’s affidavit, summarized the facts supporting its determination that there existed a “pervasive air of fear” in the proceeding, including, but not limited to: (1) David’s confrontation with Judge Oldenburg; (2) David’s threat of suicide, and discharge of a weapon; (3) David tailgating Terronez; (4) Dana asking for a protective order against the Weltons; (5) Foster stating he feared for his safety to a mental health counselor; (6) Foster’s attempt to avoid the Weltons by checking into a hotel and switching vehicles, only to encounter the Weltons at that hotel; (7) the Weltons’ attempt to video record Terronez’ arrest; and (8) Officers being posted inside and outside the courtroom and conducting meetings on safety measures. These occurrences were in addition to the events reported during the trial, including the concrete block thrown through Foster’s windshield. The District Court observed the stressful impact of these events upon Foster.

Result

The District Court made the factual determination that Foster was personally impacted and his performance was affected by the threatening behaviors from the outset of this case. These findings were not clearly erroneous. Through Foster, Terronez was impacted and his plea was at least partially induced by these events. “If any doubt exists on the basis of the evidence presented regarding whether a guilty plea was voluntarily and intelligently made, the doubt must be resolved in favor of the defendant.”

Great Falls Tribune had the story of  the attorney's death. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/12/i-came-across-a-terrible-story-told-in-a-reversal-of-a-criminal-conviction-by-the-montana-supreme-court-the-case-involved-h.html

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