Long way to justice 

DNA doesn’t lie, but does the state care?

In 2002, Montana Attorney General Mike McGrath admitted the state had imprisoned an innocent man. Two years later, McGrath appears to have changed his mind, and in a court filing last month the state suggests that it may have let the wrong man go.

In 1987, Jimmy Ray Bromgard, then only 18, was sentenced to 40 years prison after a Yellowstone County jury convicted him of raping an 8-year-old girl in her Billings home. He spent the next fifteen years of his life at the Montana State Prison, where the other inmates “wanted to go beat up the child molester,” he once said.

But in 2002, the Innocence Project had semen that investigators found at the crime scene tested against Bromgard’s DNA. It did not match, nor does it match anyone in the FBI’s DNA database of convicted felons.

“We are grateful that this new technology has allowed a not-guilty man to be set free,” McGrath said at the time in an official press release from the state attorney general’s office.

After the state released Bromgard, he moved to Kalispell and in 2005 filed a civil suit against Montana, Yellowstone County, and others charging that his civil rights had been violated and demanding $16 million dollars. Suddenly, the state of Montana, Yellowstone County and McGrath don’t seem so sure of Bromgard’s innocence.

On May 28, 2007, the Chicago Tribune published a story about comments made by McGrath in a deposition as part of the civil suit. The deposition reveals McGrath imagining several scenarios explaining who might have left the semen, including the girl’s father, while taking pains to sustain the possibility that Bromgard might have committed the crime.

After the Tribune story ran, lawyers for the state of Montana filed a motion asking the judge in the case to seal court records and issue a gag order on all attorneys to put a halt to further negative publicity. The order was not granted, and the case file has remained open to the public.

Bromgard’s lawyers have filed a motion for partial summary judgment on the issue of Bromgard’s guilt. If Bromgard’s innocence is not firmly established, says his attorney, Ronald F. Waterman of Helena, then the state could conceivably argue that the conviction was not unjustifiable.

“Hypothetically, they could convince the jury that even though somehow or another there were no finger prints found, even though there was no DNA evidence that tied him to the crime… somehow or another the police just happened to magically pick up the right guy anyway,” says Waterman.

Waterman says it is unusual for the issue of innocence to be contended for so long in a civil suit over wrongful imprisonment. “It’s not unusual for these issues to be raised preliminarily,” he says. “But this is the first time that the issue has remained in the case for as long as it has.”

Attorneys for the state and the county did not return calls for comment. But on Oct. 11, the state responded to the motion for summary judgment, arguing that Bromgard might have committed the rape while insisting that McGrath never actually exonerated him.

“The only issue before Attorney General McGrath was whether in light of the DNA results there was sufficient evidence to prove, beyond a reasonable doubt, that Mr. Bromgard committed this crime,” according to the state’s response (emphasis in the original). “Neither [McGrath] nor his staff…made any effort to determine whether Mr. Bromgard was actually innocent.”

McGrath declined to speak with the Independent about the Bromgard case.

Asked if the words of McGrath in the 2002 press release represented the opinion of the state, attorney general spokesperson Lynn Solomon responded, “I think you should talk to the state’s attorney. They’re not suing Mike McGrath, they’re suing the state.”

Attorneys for the state did not return phone calls from the Independent. But in court filings responding to Bromgard’s recent motion, the state identifies evidence connecting Bromgard to the crime, such as the victim’s description of her attacker—which, they argue, identifies Bromgard—and a checkbook that was stolen from the victim’s home and found near Bromgard’s residence.

Yellowstone County, for its part, filed court documents that introduce yet another theory of the crime. Although the county acknowledges that it no longer suspects Bromgard in the rape, it suggests that Bromgard burglarized the house on the night the assault occurred.

But the source of the semen found in the victim’s underwear remains mysterious, and the state offers no explanation, other than describing the evidence as “consistent with the use of the panties to clean up either the male, or female, genitalia after ejaculation.”

On Oct. 22, Bromgard’s lawyers rebutted the government’s claims, arguing that his exoneration by DNA evidence undermines all other evidence that purports to link him to the crime.

Bromgard, who still resides in Kalispell, did not respond to multiple requests for interviews made through his lawyers. His attorney says he has been affected by the state’s unwillingness to stand by his exoneration.

“How would you take it if someone said ‘Oh, you’re innocent, but you’re not?’” Waterman asks. “You know, it’s frustrating to find that the state and county have taken the position that they have, especially… when there really is no evidence to support the position they’re currently taking.”

According to Peter J. Neufeld, co-director of the Innocence Project and an attorney for Bromgard in this case, all paperwork has been filed regarding Bromgard’s innocence, and a federal judge will now decide whether he wants to hear oral arguments on the motion before determining the issue of Bromgard’s guilt.
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