Putting Feelings Aside

A defendant’s recorded threats toward his defense counsel and the prosecutor led the prosecutor to improperly allocute at sentencing, according to a decision of the Montana Supreme Court.

At Lehrkamp’s August 2015 sentencing hearing, the State introduced excerpts of recorded telephone conversations Lehrkamp had with his family while he was in jail. The conversations had occurred in the two days leading up to trial and on the day of trial. In the recordings, Lehrkamp discussed his thoughts about attacking his then-counsel, Mariah Eastman, and the prosecutor, Jeff Sealey, when they all were in the courtroom together. He stated:

That’s what I figure, punch the fuck’n bitch right in the throat. Won’t let me fire her in two different courts. Won’t let me fuck’n get rid of her through her boss or nobody else. Just look at her, smile, and punch her right in the throat, watch her drop. There you go, guilty. Then go after the prosecutor. After a year in here Pa I really don’t give a fuck what happens.

He’s a fuck’n cheap piece of shit, he’s a vindictive little cock sucker. Yah, I’m gonna fuck’n jump his ass in the goddam court room. Yah, I’m gonna fuck’n beat his ass until he doesn’t fuck’n breath, right there . . . I don’t care if they hear me. They better have a fuck’n cop in between us the whole goddam time because I’m gonna break his fuck’n neck. I spent a fuck’n year in this dump. Best thing they can do is shoot my ass.

I said, “Well I hope he’s listening to the conversations because he better be fuck’n on edge tomorrow and there better be a cop between me and him.” And she’s like, “Well why then?” And I said, “Because I’m gonna fuck’n break his neck.” I said, “Win or lose I don’t give a shit. I’m goddam gonna fuck’n smash the piss out of that little fuck’n weasel.” And she’s like, “Oh, I can’t believe you said that.” And I said, “Well you know when you’re being fuck’n accused of shit I didn’t do, I gonna fuck’n, I’m gonna drain his life out of him in the court room and look at the judge and you and say guilty, there, now I’m guilty.”

The prosecutor engaged in misconduct by invoking his personal views at sentencing

The prosecutor’s remarks in the present case amounted to a personal plea that the court adopt the State’s sentencing recommendation in order to provide “solace” to the prosecutor and his family. The prosecutor requested a lengthy sentence based not on the severity of the crime for which Lehrkamp was convicted—possession of dangerous drugs—but on the prosecutor’s personal feelings about Lehrkamp’s threatening comments in the recorded telephone conversations. By advocating for a sentence based on his personal feelings regarding Lehrkamp, the prosecutor exceeded his scope of “vindicat[ing] the public’s interest in punishing crime.” Ugalde, ¶ 114. In invoking the protection of his own interests—his own safety and that of his family—the prosecutor stepped into the role of crime victim and witness, thereby undermining “the objective detachment that should separate a lawyer from the cause being argued.” Ugalde, ¶ 114. If the prosecutor planned to provide personal testimony on the basis of Lehrkamp’s threats against him, a different attorney should have argued the case at sentencing. Instead, the prosecutor wrongly combined “the roles of advocate and witness.” Stock, ¶ 14 (internal quotations omitted); see M. R. Prof. Cond. 3.7(a). His remarks violated “established norms of professional conduct” and were therefore improper.

The court found the error non-prejudicial and harmless. (Mike Frisch)