Montana’s attempt to carve a legal path forward to prosecute the man linked by DNA to a decades-old home invasion and child rape has been denied.
The U.S. Supreme Court on Tuesday denied a petition for a "writ of certiorari" by Montana Attorney General Tim Fox that sought a ruling allowing prosecutors to try Ronald Dwight Tipton for the rape of an 8-year-old in Billings in 1987.
The state had previously charged the wrong man, who was incarcerated for 15 years before his exoneration.
“It’s not a popular decision, that’s for certain,” said Tipton attorney Robert Stephens, “but courts are often called upon to render decisions that are not necessarily popular but are constitutionally correct.”
Tipton, 58, of White Sulphur Springs, was charged in 2015 with three counts of sexual intercourse without consent by the Yellowstone County Attorney’s Office, after a DNA sample he submitted in an unrelated criminal case provided a match to DNA evidence from the cold case.
Tipton then successfully petitioned the Montana Supreme Court to have the charges dismissed based on the statute of limitations. The Montana Supreme Court ruling was unanimous.
Fox’s challenge of that ruling, filed with the U.S. Supreme Court in October, was denied on Tuesday after the justices reviewed the matter Friday. No written order accompanied a docket entry noting the court’s decision to deny.
“You can never predict [court rulings] 100 percent, but we felt that we had strong legal grounds for the position that we adopted,” Stephens said. “And I don’t think the state recognized that there really was a constitutional protection that was at stake, far beyond just the circumstances of this case. And I don’t think the U.S. Supreme Court was willing to upset that body of ex-post-facto law that has been relied upon by many courts in many jurisdictions.”
An attorney handling Tipton’s case at the U.S. Supreme Court argued the case was not the sort the nation’s high court needed to take up because it did not involve “a split among the lower courts on an important federal issue.” Instead, he wrote, it involved a decided issue for which “Montana doesn’t like the result.”
That attorney, Michael Kimberly, also argued Montana was overstating the frequency with which the legal issue hamstringing Tipton’s prosecution surfaced. He said the same legal problem arose only in a “sliver-thin range of cases.”
Fox had said in an interview with The Gazette that the issue of a new DNA match conclusively identifying a criminal suspect after the statute of limitations had passed — allowing that suspect to go free — came up “rather frequently in the grand scheme of things.” He cited a Kansas case in which a man convicted of raping and killing a 73 year-old woman later had his rape conviction tossed.
Fox had asked the U.S. Supreme Court to revisit an earlier ruling that set the precedent barring Tipton’s prosecution. He asked the justices to limit the scope of the previous ruling or toss it altogether, noting Tipton's case was different because it involved a DNA match.
Speaking Tuesday, Fox said prosecutors would continue to look for “appropriate” cases to mount a challenge to that earlier ruling, in Stogner v. California.
“Hopefully someone will find another case on another day so that we can get this law overturned,” he said.
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Fox said he was “extremely disappointed” that the court denied Montana's petition.
“But I have to say, I wasn’t surprised, because only about 5 percent of the cases that go up to the Supreme Court are accepted,” he said.
Stephens, Tipton's attorney in Billings, agreed it was an emotionally charged case. Those involved were "entitled to a great deal of sympathy,” he said, “but sympathy doesn’t rule the law.”
After convictions for petty crimes in multiple states in the year and a half after the 1987 rape was committed, Tipton returned permanently to Montana. He worked for years on a ranch in Big Sandy and now lives with family in White Sulphur Springs.
The state previously settled for $3.5 million with Jimmy Ray Bromgard, who was wrongly convicted in the case and served roughly 15 years in prison before his exoneration.
In 2017, Linda Tokarski Glantz came forward publicly as the victim of the 1987 rape. Reached Tuesday, she said she’d gotten a call from the attorney general's office earlier that morning telling her the petition had been denied.
“It’s devastating but it’s not unexpected,” Glantz said. “It’s hard to get a case through to the Supreme Court, and I knew that from the beginning.”
Still, she said she was grateful for all the work put into the case.
“Overall I think about all the people who put so much time and effort into this, and I think about all the people I connected with through this process, and I can’t call it a waste of time,” she said.
Glantz said while it was a “long shot” that the case could go to trial, she knew she would testify if it did. But she said even if she could address Tipton directly, she wouldn’t.
“You know at this point I would have nothing to say to him,” she said. “He’s not worth it.”
She added that she hopes as the law evolves, there are fewer cases like hers where a DNA-identified suspect can’t be tried.
“I still think that it’s time for our legal system to catch up with the science that’s available, and I think that once it does, I think more victims and survivors will be helped,” she said.