Court Orders Dismissal Of Criminal Charges Against Attorney

The Montana Supreme Court dismissed criminal charges against an attorney by the grant of a writ of supervisory control.

Facts

Ramsey is an attorney in Billings. He represented Justin Kalina in DC-20-1474 (Case 1), in which Kalina was charged with felony assault with a weapon. Jessica Foote was a witness to the underlying assault in that case, who later complained about witness tampering by Kalina. The State subsequently added a witness tampering charge in Case 1. While Kalina was in custody, he allegedly discovered Foote had spent over $1,700 on Kalina’s Uber Eats account. Kalina notified law enforcement of the alleged theft and the Yellowstone County Sheriff’s Office (YCSO) investigated Foote regarding Kalina’s claim (Case 2). The State ultimately did not bring charges against Foote in Case 2.

While representing Kalina, Ramsey sought information from the prosecutor in Case 1 that had been gathered in Case 2 and which could be exculpatory or used to impeach Foote. The prosecutor sent Ramsey a report of the Case 2 investigation once it was completed. That report indicated a cell phone extraction had been done on Foote’s phone and contained text messages between Kalina and Foote. Consistent with Yellowstone County’s general practice of having defense counsel receive electronic discovery from the relevant law enforcement agency, Ramsey did not receive the cell phone extraction from the prosecutor. Ramsey thereafter submitted a form to the YCSO requesting copies of the Confidential Criminal Justice Information (CCJI) in Case 2, noting he sought copies of CCJI from YCSO case number 2021-000729119, regarding defendant Foote. The form Ramsey submitted to the YCSO was a modified version of the typical form used to obtain CCJI, which contains an acknowledgement of receipt of CCJI and notes the “information will only be provided to Defendants in pending Court actions or Attorneys who have been retained to represent a Defendant in a Court action.”

Court majority

As charged by the State, Ramsey, an attorney in good standing, submitted a modified but accurate form to the YCSO in the course of representing Kalina in Case 1, seeking CCJI regarding Case 2. In said form, Ramsey specifically attested to the YCSO that he is an attorney who “REPRESENT[S] THE VICTIM” and “has been retained to represent the victim in this action, and I am obtaining this information solely for the use of that attorney in connection with . . . representation of the victim. The defendant in this matter is also a witness in a connected matter to my client (the victim).” Ramsey also noted the specific criminal matter, “DC-20-1474,” or Kalina’s Case 1, for which he was seeking the CCJI regarding Case 2. Ramsey seeking CCJI by using a form which specifies “I REPRESENT THE VICTIM” and explains his purpose for seeking the CCJI is not forgery, trickery, fraud, or the solicitation of a criminal offense. If internal YCSO policies would prohibit dissemination of CCJI to an attorney not representing the defendant to which the CCJI pertains yet Ramsey still received it anyway after making abundantly clear that he represented the victim and not the defendant, that is, frankly, not Ramsey’s problem and an issue for the YCSO to address itself by reviewing its own policies and, if necessary, retraining staff to actually read the words contained in the submitted forms. All parties agree that Ramsey believed he was entitled to the CCJI he sought and that he sought it in the course of his representation of Kalina in Case 1, and the State further agrees that he in  the course of his representation of Kalina in Case 1, and the State further agrees that he is  in fact likely entitled to most, if not all, of the CCJI disseminated to him. Taking the facts of the affidavit in support of the State’s motion to file charges against Ramsey as true, the State cannot, as a matter of law, establish probable cause to charge Ramsey with either forgery or solicitation of the misuse of CCJI.

Ultimately, there is not probable cause to believe Ramsey committed either offense charged in this case and the Justice Court should not have granted the State’s motion for  leave to file a complaint. When Ramsey raised the probable cause issue again in his motion to dismiss, the Justice Court should have reassessed its initial probable cause determination as a matter of law rather than simply reiterating the initial probable cause determination and noting there was “nothing new to consider[.]” Accordingly, the State’s criminal prosecution of Ramsey for something which is not a crime must be dismissed.

Justice Jim Rice, dissenting.

For the reasons discussed herein, I would not exercise supervisory control and intervene in this criminal prosecution. Consideration of the sufficiency of the allegations supporting probable cause is a question not well suited to review upon supervisory control, due to the assessment of probability inherent in the inquiry. The Court frames this case as involving “undisputed” facts and a “pure question of law,” but I disagree with this assessment. Opinion, ¶ 12. The perception of “undisputed” facts arises, in my opinion, from factual assumptions or determinations the Court improperly makes in favor of the Defendant.

Per the dissent

Ramsey is presumed innocent, and he is completely entitled to offer evidence at trial that none of these allegations and inferences are true; rather, that he mistakenly believed, though a lawyer, he was immediately entitled to receive this confidential information without completing the process of review, and therefore he had no need or intention to defraud; that he innocently believed he could properly obtain this information by altering the official form to make it look like the official form, but which instead matched the client he was representing in Case 2—not the requisite defendant, but a victim; and that he innocently assumed it was unnecessary for him to advise the agency that he had altered its form because he thought the agency would catch the error if he was wrong. If the factfinder believes these Ramsey positions, then he will be acquitted. But it is possible that the factfinder will not believe Ramsey, because there is probable cause to believe otherwise.

Despite this, the Court completely accepts Ramsey’s point of view regarding his intentions, concluding that the mental state elements of the charges are “entirely lacking in the charging documents.” Opinion, ¶ 16. However, they are not lacking, and the Court’s conclusion to the contrary is essentially a factual finding that Ramsey lacked all criminal intentions, and engaged only in completely innocent behavior. The Court concludes that the altered form submitted to the agency by Ramsey was a “modified but accurate form,” which “ma[de] abundantly clear” his intentions. Opinion, ¶ 17. This conclusion overlooks the question of what right or authority Ramsey had to alter the form in the first place; it mistakenly states that Ramsey’s counterfeit form, deceptively made to look like the official form and omitting the legal prerequisite for release of the CCJI, was somehow an “accurate” request for confidential information; and it absolves Ramsey of submitting the counterfeit form to the agency without telling the agency what he had done, and receiving
CCJI to which he was not entitled. Then, the Court surveys this case and concludes that the fault entirely lies not with the person who allegedly misled the agency and manipulated the process, but with the Sheriff’s Department. See Opinion, ¶ 17 (“[T]hat is, frankly, not Ramsey’s problem and an issue for the YCSO to address itself by reviewing its own policies . . . .”). In sum, the Court does not accept the allegations at face value, but instead takes on the role of factfinder and decides that all of Ramsey’s actions were done with innocent purpose and without deception. In my view, as alleged and supported by the complaint, this indeed is Ramsey’s problem, and the ultimate determination about the truth of these factual allegations should be left to the factfinder.

(Mike Frisch)