Sharply Divided Montana Supreme Court Reverses Guilty Verdict of Lesbian Probation Officer

The Montana Supreme Court divided 4-3 over the question whether a trial court erred by admitting evidence about the homosexual relationship between a criminal defendant, a lesbian parole officer, and another person involved in the case, the majority opining that the exact nature of the relationship was not necessary to prosecution of the charge and otherwise might have been prejudicial to the defendant, while the dissent argued that the nature of the relationship was relevant and the court’s ruling was perpetuating the very stereotypes it was intended to guard against. City of Kalispell v. Miller, 2010 WL 1055251 (March 24, 2010).

The defendant, Molly Miller, was employed as a probation and parole officer by the City of Kalispell. She was out drinking one night with her lesbian partner, Benware, and a friend and co-worker of Benware, Amanda Dumke. After some drinking, Benware threw a beer bottle at Miller and was evicted from the tavern, Miller and Dumke staying behind to continue drinking. Dumke became concerned about Benware and called to check on her; Benware’s response caused her enough concern that she called the police and asked them to conduct a welfare check on Benware, explaining that Benware was "playing" with a gun and very upset. When Dumke told Miller that she had made this call, Miller became concerned that it might endanger Benware’s job at the County Sheriff’s Department Animal Control Unit. She called the police, identified herself as a probation officer and said there was no need to check on Benware, who was with her, and that the prior call had been a prank call. Actually, Benware had taken some sleeping pills when she got home and then left in her car, intending to get a soft drink, and got into an auto accident. The police dispatcher had relayed the message to call off the welfare check. The accident had occurred shortly before Miller had made her call to the police.

The City prosecuted Miller for misdemeanor obstructing a police officer. At trial, Miller moved to exclude the nature of her sexual relationship with Benware from evidence, arguing that it would be sufficient to describe the women as close friends, but the trial court rejected the motion and, according to Miller’s argument on appeal, the trial was permeated with comments about her homosexual relationship with Benware. The trial court also rejected Miller’s motion to exclude evidence about Benware’s auto accident, and sustained over Miller’s objection the prosecution’s request to examine Benware as a hostile witness using leading questions. Miller was convicted and appeal from the municipal court to the district court, which affirmed her conviction. The Supreme Court reversed and ordered a new trial.

Writing for the court, Justice Patricia O. Cotter agreed with Miller that it had been error for the trial court to allow testimony about the homosexual relationship between Miller and Benware. The lower courts had ruled that they were merely treating all relationships alike, as it would clearly have been admissible had Miller and Benware been a married heterosexual couple. The Supreme Court disagreed. "Society does not yet view homosexuality or bisexualty in the same manner as it views heterosexuality," wrote Justice Cotter. "Because there remains strong potential that a juror will be prejudiced against a homosexual or bisexual individual, courts must safeguard against such potential prejudice."

The lower courts had relied upon the Montana Supreme Court’s prior decision in State v. Ford, 929 P.2d 245 (1996), in which the court had admitted evidence about the defendant’s bisexuality in a forcible sodomy prosecution. That case was distinguishable, wrote Cotter, because the defendant’s bisexuality was directly relevant and probative to an essential element of the case. Cotter noted that in Ford the court had itself acknowledged the issue of potential prejudice, quoting the earlier decision: "There is, unquestionably, the potential for prejudice in this situation. There will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive... Our criminal justice system must take the necessary precautions to assure that people are convicted based on evidence of guilt, and not on the basis of some inflammatory personal trait. Therefore, we caution prosecutors and district courts not to assume, based on this opinion, that evidence of a defendant’s sexual preference would be admissible under most circumstances."

Thus, the court should seriously consider whether reference to homosexuality is really necessary for the prosecution. Cotter insisted that "Miller’s sexual orientation and the existence of an intimate relationship with Benware was not probative or relevant evidence vis-a-vis the crime with which Miller was charged. As Miller suggested before trial, if the State was concerned that the jury understand Miller’s motive for calling off the KPD welfare check, it could have simply explained that the two women were good friends. There was no need to make repeated references throughout the trial to the homosexual nature of their relationship – either as an element of the crime or to establish context." The court found this sufficiently prejudicial to place the fairness of the trial in question, justifying setting the verdict aside and ordering a new trial.

However, the court agreed with the lower courts that evidence of Benware’s accident was relevant to showing that Miller had lied to the KPD, and that the relationship of the two women was sufficient to justify having treated Benware as a hostile witness when she was being questioned by the prosecution at trial.

Writing for the three dissenters, Justice Brian Morris charged that the court "overreaches in its search for prejudice and perpetuates the stereotypes from which it professes to protect Miller." He argued that the prosecution’s remarks "emphasized the intimate nature of the relationship between Miller and Benware in order to demonstrate that Miller had a motive to make the call in order to protect Benware," and that the state’s references to the nature of their relationship had not been excessive. Morris also asserted that Miller’s counsel had effectively used voir dire to exclude jurors who might be prejudiced against a gay defendant. "I would not assume that any unspoken prejudice among the potential jurors rose to the level of a potential juror being more likely to convict Miller for misdemeanor obstruction of a peace officer due to the fact that Miller and Benware had established an intimate relationship for thirteen years."

The majority and dissenting opinions set up an interesting debate.  We recently reported on a decision emanating from Texas where the federal court thought there still might be grounds, in this post-Lawrence v. Texas world, to presume that it is harmful to a person's reputation to call them gay, a position strikingly similar to that taken by the Montana Supreme Court majority here.  Have we yet arrived at the point in the history of the gay rights movement when we can presume that gay people will get a fair shake in court from every juror, or is the majority correct in asserting that homosexuality should be kept out of evidence in a trial unless it is directly implicated in the case, for fear that jurors will be less likely to give fair consideration to a gay defendant?

Comments

[the crustybastard]

"The lower courts had ruled that they were merely treating all relationships alike, as it would clearly have been admissible had Miller and Benware been a married heterosexual couple."

Had they been married, they could claim spousal privilege and Benware couldn't be forced to testify.

[Art Leonard]

If they were married, spousal privilege could be raised to bar particular questions, but wouldn't necessarily give Benware a total pass on testifying at all.

If what they meant was that they treated unmarried heterosexual and homosexual relationships alike in the sense that of course the prosecutor would have been allowed to elicit the fact that a different-sex couple had a sexual relationship in order to help explain why one would lie for the other, then the privilege issue doesn't arise.