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POLSON — Lake County Sheriff Don Bell said his office recommended that Ryan Black should be charged in the September shooting death of another Pablo man, but the county attorney’s office took a different direction.

On Tuesday, Lake County Attorney Steve Eschenbacher said he would not be charging Black, saying he didn’t believe he had the evidence necessary to convict him.

In a statement released Wednesday morning, Bell said that following a joint investigation by his office and state officials, he had recommended that Black, 28, be charged with negligent homicide.

“This was based on scene evidence as well as the statements made by Black in the aftermath of the shooting,” Bell said.

Johnny McKeever was shot and killed on Black’s doorstep after McKeever allegedly showed up there to confront his estranged wife and Black.

McKeever was shot in the head with a .44 Magnum pistol from a distance of about 2 to 3 feet.

According to Eschenbacher’s statement, Black said the pistol went off as he was falling backwards after being punched in the eye by McKeever. Black also told investigators the pistol was at waist level when it fired, which would have meant that McKeever was ducking and turning when the gun went off.

Bell said Black has not claimed that he acted in self defense.

“This issue was raised solely by the county attorney’s office,” Bell said. “Rather, Black stated he accidentally shot McKeever and investigator observations do not match Black’s initial statement about how this accident occurred. For these reasons, we believe there is probable cause to charge Black with negligent homicide for the death of McKeever.”

In an interview Wednesday, Eschenbacher said he and the sheriff are working with two different standards. While both may agree there was enough evidence to charge Black with negligent homicide, Eschenbacher said he doesn’t believe there is enough evidence to prove the case beyond a reasonable doubt.

For Eschenbacher, the case boils down to the fact that McKeever showed up at Black’s home at 4 a.m., pounded on his door hard enough to cause damage, and then hit Black in the eye despite the fact that Black had a gun in his hand.

It doesn’t matter that Black hasn’t raised the issue of self-defense, Eschenbacher said. As a former defense attorney, Eschenbacher said that even if he was able to convict Black of negligent homicide and the self-defense issue wasn’t raised during the trial, the case would be overturned.

“I’m not just going to put the case to a jury when I know the law says he has the right to use deadly force,” Eschenbacher said.

The Montana Division of Criminal Investigation also recommended prosecution in the case, but Eschenbacher said the information it used was incomplete.

“The assumptions that DCI worked with were invalid,” he said. “Because of that, they reached an invalid conclusion.”

Eschenbacher said McKeever had no business being there that night. The people inside the house were not required under the law to call the police when he first arrived. Black wasn’t required to retreat under the law.

“I can’t ethically prosecute him when I know he was following the law,” Eschenbacher said.

Eschenbacher said the case remains open. If any new evidence comes to light, his office could decide to refile the charges against Black.

“There are no statutes of limitations on homicide,” he said.

As to the sheriff, said Eschenbacher, “he’s looking for what he needs to get an arrest,” he said. “I’m looking for what I need to get a conviction.

‘It’s a tough case. I’m not happy with it, but I don’t see a legal way to proceed,” Eschenbacher said. “I don’t see how a jury could come back with anything other than justifiable use of force.”

Eschenbacher said he knows the McKeever family has been unhappy with his lack of communication with them. He said that occurred because he was viewing McKeever a potential perpetrator rather than a victim.

McKeever’s oldest brother, Ty McKeever of Normal, Illinois, said his family believes that Eschenbacher made up his mind on this case early on and was unwilling to listen to the law enforcement.

“We were told by the detective that based on the evidence they had, it appeared that there would be charges,” McKeever said. “No one from my family has been able to reach him (Eschenbacher) from the very beginning. My aunt has been blowing up his office with phone calls that weren’t returned.”

McKeever said the family wasn’t notified about the Eschenbacher’s decision and learned about it only after it became available through the media.

“I had been pretty calm while trying to get through all of this,” McKeever said. “I was hoping that justice would happen in its own course. Everything we heard from the detectives made it seem like it would. It doesn’t like that’s going to happen now.”

McKeever said he talked with his brother all the time.

“He would have told me if he had been in early confrontations with this guy,” McKeever said. “He never got physical with this guy before … Johnny grew up a bit of a rebel as a way to make friends, but once he got away from that and had kids, it changed him. He was a great father. I was always amazed at how good he was with his children.”

McKeever said he believes his brother was murdered and it appears that nothing will be done.

“That’s why there is so much anger from my whole family,” he said. “Eschenbacher should have been more neutral. It was like he made up his mind right off the bat that it was self-defense. Even after all the evidence came in, he stuck to his guns.

“We sat here week after week after week waiting for more information that never came,” McKeever said. “It’s weird. I figured that there would be more communication when something like this happens.”

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