A Missoula man convicted in the 2014 shooting death of a German exchange student was back in court Thursday, seeking a new trial.
Markus Kaarma's new attorney argued before a retired Missoula County District Court judge that he should get a new trial due to ineffective assistance of counsel during his December 2014 homicide trial.
Kaarma was convicted of killing 17-year-old Diren Dede, a German foreign exchange student in Missoula, who entered Kaarma's garage one night in April 2014. Kaarma's residence had been burglarized twice before he shot and killed Dede with a shotgun.
On Thursday, Kaarma's attorney Wendy Holton contended that during his trial, his attorneys did not fully define self-defense statutes to the jury.
This argument sharply focuses on Montana's self-defense laws, particularly one commonly known as the "castle doctrine," which allows a Montana resident to use deadly force to stop the intruder. Under the castle doctrine, a person must believe force is necessary to prevent the intruder from assaulting someone or committing a "forcible felony."
The individual's ability to use deadly force is restricted outside the home, however. Such cases would fall under what's been called the "stand your ground" law, also in place in Montana, where citizens don't have a duty to flee or call for help when threatened, although the response to the threat has to be the same level of the attack.
The particular language from the "castle doctrine" regarding deadly force was not included in instructions to the jury when they began deliberating the defense's argument, said Holton.
"That was nonetheless a fatal error in the case," she said Thursday. "The failure to get that in allowed the state to argue that Markus was the aggressor and he could not use deadly force unless he was subject to deadly force, and that is not the law."
Kaarma was reasonably frightened for his safety and that of his girlfriend and infant son, who were inside the home, Holton said on Thursday. And Dede's intention that night — whether he was going to steal a soda from the refrigerator or assault someone inside Kaarma's home — doesn't matter, she said, because Kaarma had no way of knowing what Dede would do.
Kaarma's family members, including his son, were in court for the hearing.
Missoula Deputy County Attorney Jen Clark countered that Kaarma's intention, based on his statements to a lawn care worker and a hairdresser, did not involve protection from fear of being harmed. Kaarma's home had been burglarized twice, others in the neighborhood had also fallen victim, and police had no leads on any suspects at the time.
"And clearly Mr. Kaarma's intent was not to protect himself and not based in a fear of harm," Clark said. "It was revenge."
Missoula prosecutors are also arguing that Kaarma gave up that right to use deadly force when he stepped through his door to fire the shotgun at Dede, a point Holton explicitly argued at Thursday's hearing. Once Kaarma was outside, his actions fell under the "stand your ground law," Clark argued.
Additionally, Clark added, Kaarma had five attorneys, with more than 60 years of experience combined, representing him at trial. Affidavits filed in this case from those attorneys argues that they did employ a strategy at trial.
Kaarma's petition for post-conviction relief was filed in September. The Montana Supreme Court has already affirmed his conviction, and the U.S. Supreme Court declined to hear the case.
His case, at the time, focused scrutiny on self-defense statutes that defined cases such as the one in Florida involving George Zimmerman's killing of Trayvon Martin. Attorneys told the Missoulian then that his conviction clarified some misconceptions about the "castle doctrine," specifically the reasonable belief about someone exhibiting a threat when they enter a property unlawfully.
Montana's law has not been adjusted or clarified in light of Kaarma's case; its last amendment was in 2009.
The petition to review the sentence is being heard by retired Missoula District Judge Ed McLean, who presided over the original case and imposed the sentence: 70 years in state prison with no chance for parole for the first 20 years.
"You didn't protect your residence, you went hunting," McLean told Kaarma at the February 2015 sentencing. "You are angry at the world, and it's evident in your behavior."
At the ending of the hourlong hearing on Thursday, McLean said he would take the matters under advisement. No future hearings were scheduled as of Thursday.