Along with a handful of states that still hold coroners’ inquests, Montana’s legal system for reviewing deaths caused by law enforcement is seen by advocates as a more transparent alternative to the secret grand juries and other proceedings held elsewhere in the country.
But in a state with one of the nation’s highest rates for fatal officer-involved shootings, Montana’s inquest proceedings are controlled by county attorneys who often have a close working relationship with those same officers.
Critics argue this arrangement fails to provide accountability and allows local prosecutors to steer coroners’ juries toward findings that clear the officers involved.
In the 39 fatal officer-involved shootings in Montana examined by The Gazette, the officers’ actions were found justified in every instance. In one case, a county attorney began the inquest by declaring the officers’ innocence. In others, county attorneys appear to have selectively presented evidence to point to that conclusion.
London School of Economics law professor Paul MacMahon is one of the few academics who have studied coroners’ inquests in recent years. He argues that inquests can offer a transparent way to provide “an objective examination” of controversial deaths, but notes that the type of proceeding in place in Montana contains inherent conflicts of interest.
“It’s really essential that the proceedings are directed by someone who is genuinely independent of law enforcement officers whose conduct is under scrutiny,” MacMahon said. “Those are the procedural rules that you’re going to need if this institution of the inquest is going to provide a genuine check on officer misconduct.”
Same case, different outcomes
Two years ago, Yellowstone County agreed to pay more than $1.25 million to the family of Loren Benjamin Simpson, a 28-year-old man fatally shot in the back of his head by sheriff’s deputies on a rural county road in January 2015.
The settlement amount was reached several months after a federal judge denied the two deputies legal immunity for their actions. In her order, Judge Susan Watters heavily criticized the officers’ conduct, setting out a laundry list of concerns and noting that video evidence clearly showed Simpson attempting to drive around the officers before they fired at least 24 rounds at the SUV.
Yet a year earlier, it had taken a coroner’s inquest jury just 30 minutes to clear the two former Yellowstone County sheriff’s deputies involved in the 2015 shooting. Many of the details on which Watters based her decision had been left either unquestioned during the two-day inquest or were touched on only in passing by prosecutors with the Yellowstone County Attorney’s office.
“You certainly don’t come away from it thinking to yourself that the county attorney’s office was trying to obtain a conviction here or pursue these people,” said Nate Wagner, a Missoula-based attorney who represented Simpson’s family and was present during the inquest.
Wagner said he built the civil case for Simpson’s family by relying solely on the information that investigators provided to the county attorney’s office prior to the inquest.
Yet absent from the two-day proceeding that cleared the officers were their own earlier admissions that the video appeared to show Simpson driving away from them. Simpson was later discovered to be driving a stolen SUV, but officers acknowledged that at the time they fired at him they were unsure whether they had spotted the right vehicle, or who was driving it.
The county attorneys at the inquest questioned multiple witnesses about various policies within the sheriff’s office, and established a narrative portraying Simpson as a meth addict who had a history with law enforcement. Yet they never mentioned the fact that the officers’ actions sufficiently violated the department’s policies to the extent that they faced sanctions “up to and including termination” before they resigned their posts five days after the fatal shooting.
Watters took a harsher view of the deputies’ actions.
“Without discussing any less deadly alternative for stopping Simpson, they loaded their weapons, stepped onto a snow-covered road with those weapons aimed, shouted at a man inside a moving car with its windows up, gave no warning they would shoot, allowed him four seconds to try to stop under these highly questionable circumstances on a snowy road and then shot at him,” Watters wrote. “And all this where the video demonstrates that they did not have cause to believe Simpson posed a threat to them.”
Leading the jurors
Like the circumstances of every officer-involved shooting, each coroner’s inquest is different, and the manners in which county attorneys and coroners hold the proceedings vary across the state.
Coroners, who act as hearing officers during inquests, select the juries, read instructions to them and periodically interject with their own questions of the witnesses. But a prosecutor from the county attorney’s office typically takes the lead role, conducting the majority of the questioning and deciding what evidence and witnesses to include.
“It’s really just facilitating, getting the witnesses that have some relevant information about how it happened to the witness stand, to facilitate having them describe how it happened from their perspective,” Jason Marks, the chief deputy Missoula County attorney who has conducted several inquests into recent officer-involved shootings.
Nevertheless, sometimes, a county prosecutor's goal of leading the juries to declare the shooting justified is explicit.
“We’ll show you that the shooting was justified and that Mr. Addison could have ended this peacefully but chose not to,” Cascade County Attorney Josh Racki told the jury at the beginning of the inquest into the shooting death of Thomas Jordan Addison, the Great Falls Tribune reported in 2018.
Jurors spent less than 30 minutes deliberating before finding the Great Falls police officers justified in killing Addison.
In other cases, county attorneys tell jurors they are present only to provide as much relevant information as possible, yet focus on certain pieces of evidence while omitting others.
In Simpson’s case, the deputies’ dashcam footage of the shooting clearly showed Simpson’s vehicle attempting to drive around the officers before they opened fire. Referring to the Supreme Court’s framework for determining “reasonableness” in deadly use-of-force cases, Watters wrote that “the record does not support the deputies’ perception of an immediate threat to their safety or the safety of third parties.”
Watters also pointed to testimony by both deputies after the shooting, in which they conceded that the video shows the vehicle driving away from them before they began firing. During the inquest, however, the video was shown only once, and Yellowstone County Deputy Attorney Victoria Callendar introduced it by allowing one of the deputies to first argue that the footage fails to capture accurately what happened. The deputies’ previous admissions to investigators were not mentioned during the inquest.
Coroners’ juries are typically told that under Montana law, they may only consider what facts the officers knew at the time they opened fire in determining whether their decision was justified.
“You have to determine what happened from the perspective of the officers involved in the incident; you don’t get to Monday-morning quarterback,” Callendar told the jury during her opening statement, according to a transcript of the inquest. “ … The shooting incident happens very quickly, the deputies had to act fast and make some decisions even faster.”
Toxicology reports showing the levels of alcohol or drugs present in the victim’s system at the time of death are frequently relied upon. In Simpson’s case, a medical examiner testified to the jury that the meth levels in his blood were “the highest level” he had ever seen outside of a fatal overdose, despite that information being out of reach at the time of the shooting.
MacMahon stopped short of saying that lab work should be inadmissible in an inquest, but said he saw potential problems with leaving those decisions up to a coroner, who tends to have little to no legal background.
“Unless you have a presiding officer who is acting as a kind of gatekeeper to exclude evidence that is irrelevant,” he said, “then of course, the county attorney or other prosecutor will then have free reign to produce that evidence, even if during a proper legal proceeding it should be kept from the jury because it’s not relevant.”
Still, several county attorneys contacted for this story pointed to the openness of coroner’s inquest to the public and insisted that county attorneys strive to provide jurors with an even-handed overview of all the relevant evidence.
“I personally take some considerable effort to make sure I’m not arguing to the jury for some outcome,” said Marks, the Missoula County deputy attorney. “We really to try to put on evidence from everyone that knows about that situation. It’s not like we’re trying to play hide the ball.”