In 1987 a jury in Billings, Montana, convicted an 18-year-old man named Jimmy Ray Bromgard of raping an 8-year-old girl. At the trial the victim, who earlier had picked Bromgard out of a police lineup, said she was only “60-65 percent” sure he was the perpetrator. The next day in court, however, prosecutors introduced hair samples found at the scene of the crime that they said were indistinguishable from those provided by the accused. The director of the state’s crime lab testified that the chances of this being a coincidence were one in 10,000. Bromgard’s public attorney did not challenge this claim. He met with his client only once before the trial began, waived his opening statement and failed to investigate whether other evidence at the scene of the crime, such as traces of semen on the girl’s dress, implicated his client. It took one hour for the jury to arrive at a guilty verdict; the judge, struck by Bromgard’s lack of remorse, sentenced him to three concurrent forty-year sentences.
But there is a reason Bromgard wasn’t sorry. As an investigation by the New York-based Innocence Project would eventually reveal, the semen found on the victim’s dress did not match up with his. The scientific-sounding claims about the hair samples turned out to be baseless. In 2002 DNA testing cleared Bromgard of the crime, by which point he’d spent more than fifteen years in state prison–“hard years,” stresses Ron Waterman, a lawyer now representing him in a civil suit. Like many presumed child molesters, Bromgard was beaten repeatedly while locked up. On one occasion his jaw was smashed. He left with a decade-plus gap in his employment history and no functional skills. “And, of course, there’s still a stigma that follows him,” Waterman told me when we met at his office in downtown Helena, the state capital.
Jimmy Ray Bromgard may have paid more dearly for the shoddy legal representation he received than most people who have shuffled through Montana’s criminal justice system over the past few years, but his case was no anomaly. “Our estimate was that the system got roughly 100 people wrongfully imprisoned per year,” said Waterman, a partner at one of Helena’s most prestigious law firms. The problem was not just overzealous prosecutors, he explained. It was a public defender system that left poor people accused of crimes consistently shortchanged.
A few years ago investigators from the National Legal Aid and Defender Association (NLADA) fanned out across Montana to gauge the extent of problems like those Bromgard encountered. In some counties, they found, public defenders reported being so overloaded they spent forty-five minutes per felony. Others said judges pressured them to pursue plea bargains for their clients regardless of the circumstances, or that they had no money to purchase office supplies, much less to hire experts to contest the evidence prosecutors presented in court. In one instance a lawyer was unaware that his client was a schizophrenic; another characterized investigating the charges against the people he represented as “aspirational activities.”
The NLADA investigation was carried out at the behest of the ACLU, which in 2002 had filed a lawsuit charging seven Montana counties with failing to fulfill their constitutional obligation to provide indigent residents with qualified legal counsel. Afterward lawyers on both sides set about preparing for a bruising legal battle. Depositions were taken; arguments were prepared. The matter seemed destined to be settled in court. In May 2004, however, perhaps sensing that a ruling might not go in the state’s favor, Montana Attorney General Mike McGrath announced that instead of fighting the lawsuit, he would work with the ACLU to convince the legislature to pass a bill addressing its concerns.
It was a novel concept, one that, in a fiercely libertarian state where suspicion of government runs deep, many people doubted could succeed, which is one of the reasons the ACLU agreed to suspend its lawsuit for one year to see how things played out, not withdraw it altogether. In June 2005 Montana became the first state to enact legislation modeled on the American Bar Association’s “Ten Principles of a Public Defense Delivery System,” creating a new Office of the State Public Defender that, among other things, would provide indigent defendants with lawyers as soon as possible, keep attorney caseloads reasonable and rigorously supervise performance to insure that the constitutional rights of anyone accused of a crime in Montana are upheld. To the surprise of everyone, the bill passed with overwhelming support from Democrats and Republicans alike.