Petition for Writ of Certiorari — Montana, Petitioner v. Ronald Dwight Tipton

NO.

In the Supreme Court of the United States

STATE OF MONTANA,

v.

Petitioner,

RONALD DWIGHT TIPTON,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Montana

PETITION FOR A WRIT OF CERTIORARI

C. Mark Fowler

Appellate Bureau Chief

Tammy A. Hinderman

Assistant Attorney General

Appellate Services Bureau

Montana Department of Justice

Scott Twito

Yellowstone County Attorney

Room 701, Courthouse

P.O.Box 35025

Billings, MT 59107-5025

Timothy C. Fox

Montana Attorney General

Dale Schowengerdt

Solicitor General

Counsel of Record

Matthew T. Cochenour

Assistant Attorney General

215 N. Sanders St.

Helena, MT 59601

DaleS@mt.gov

(406) 444-2026

Counsel for Petitioner

October 3, 2018

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

In Stogner v. California, 539 U.S. 607 (2003), this

Court held that a California statute that revived timebarred prosecutions for sex-related child abuse crimes,

and that was itself enacted after the limitations period

for the alleged offense had expired, violated the Ex Post

Facto Clause. Stogner involved a sexual abuse report

25 years after the alleged abuse and was based on

recovered memory. This case, by contrast, involves the

1987 rape of an 8-year-old who immediately reported

the crime; the suspected rapist’s identity was

discovered only after the crime lab entered Ronald

Tipton’s DNA profile into CODIS in 2014 as part of a

separate criminal case and found that it matched the

unsolved rape. The Montana Supreme Court

nevertheless held that Stogner barred prosecution of

Tipton because the statute of limitations for the 1987

rape had expired before Montana enacted a law

allowing prosecutions within one year of a suspect’s

DNA identification, even if the limitations period had

expired.

The questions presented are:

1. Whether this Court should revisit Stogner and

clarify that the Ex Post Facto Clause does not bar the

revival of a limitations period in cases where DNA

evidence identifies the suspect after the statute of

limitations has expired.

2. Whether this Court should overrule Stogner

because it departed from the exclusive definition of ex

post facto laws set forth in Calder v. Bull, 3 U.S. 386

(1798).

ii

PARTIES TO THE PROCEEDING

Petitioner State of Montana was the respondent

below. Because the Montana Supreme Court reviewed

the district court’s decision on a state procedure known

as a writ of supervisory control, which allows for

interlocutory review of district court orders (Pet. App.

6-7), the Thirteenth Judicial District Court and district

court judge Mary Jane Knisely were also respondents,

but nominally so. Respondent Ronald Dwight Tipton

was the petitioner below.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Linda Tokarski Glantz’s Rape, DNA’s

Exoneration of a Wrongly-Convicted Man,

and Ronald Tipton’s Identification as the

Suspect Decades after the Crime . . . . . . . . . . 3

B. Montana’s Statutes of Limitations for Sex

Crimes and the Underlying Proceedings . . . . 6

REASONS FOR GRANTING THE PETITION . . . 13

I. This Court Should Revisit Stogner v. California,

and Clarify that the Ex Post Facto Clause Does

Not Bar Revival of Statutes of Limitations for

Sex Crimes When DNA Identifies A Suspect . . 13

A. Stogner Allows Rapists Conclusively

Identified by DNA Who Have Evaded

Identification and Capture Beyond the

Limitation Period to Go Free . . . . . . . . . . . . 14

iv

B. The Rule from Stogner Should Not Apply

Where There Is No Delay in Reporting the

Rape and DNA Evidence Identifies a Suspect

after the Statute of Limitations Expired . . . 19

II. Alternatively, This Court Should Overrule

Stogner, Which Stands Doctrinally Discordant

from the Court’s Ex Post Facto Precedent . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

APPENDIX

Appendix A Opinion in the Supreme Court of the

State of Montana

(July 5, 2018) . . . . . . . . . . . . . . . . App. 1

Appendix B Findings of Fact, Conclusions of Law,

and Order Denying Defendant’s

Motion to Dismiss in the Montana

Thirteenth Judicial District Court,

Yellowstone County

(November 2, 2017) . . . . . . . . . . App. 21

Appendix C MONT. CODE ANN. § 45-1-205 . . App. 51

v

TABLE OF AUTHORITIES

CASES

Calder v. Bull,

3 U.S. 386 (1798) . . . . . . . . . . . . . . . . . . . . passim

Carmell v. Texas,

529 U.S. 513 (2000) . . . . . . . . . . . . . . . . . . . . . . 26

Collins v. Youngblood,

497 U.S. 37 (1990) . . . . . . . . . . . . . . . . . . 2, 26, 28

Cummings v. Missouri,

71 U.S. (4 Wall.) 277 (1867) . . . . . . . . . . . . . . . . 26

District Attorney’s Office v. Osborne,

557 U.S. 52 (2009) . . . . . . . . . . . . . . . . . . . . . . . 14

Dobbert v. Florida,

432 U.S. 282 (1977) . . . . . . . . . . . . . . . . . . . . . . 23

Fletcher v. Peck,

10 U.S. 87 (1810) . . . . . . . . . . . . . . . . . . . . . 20, 26

Florence v. Bd. of Chosen Freeholders,

566 U.S. 318 (2012) . . . . . . . . . . . . . . . . . . . . . . 15

Gut v. Minnesota,

76 U.S. (9 Wall.) 35 (1869) . . . . . . . . . . . . . . . . . 26

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) . . . . . . . . . . . . . . . . . . . . . . 23

Kansas v. Garcia,

169 P.3d 1069 (Kan. 2007) . . . . . . . . . . . . . . 16, 17

Kring v. Missouri,

107 U.S. 221 (1883) . . . . . . . . . . . . . . . . . . . . . . 28

vi

Maryland v. King,

569 U.S. 435 (2013) . . . . . . . . . . . . . 14, 15, 20, 21

Miller v. Florida,

482 U.S. 423 (1987) . . . . . . . . . . . . . . . . . . . . . . 20

Montana v. Moore,

885 P.2d 457 (Mont. 1994) . . . . . . . . . . . . . . . . . . 4

Moore v. New Jersey,

43 N.J.L. 203 (1881) . . . . . . . . . . . . . . . . . . . . . . 28

State ex rel. Nicholson v. Louisiana,

169 So. 3d 344 (La. 2015) . . . . . . . . . . . . . . . . . . 17

Stogner v. California,

539 U.S. 607 (2003) . . . . . . . . . . . . . . . . . . passim

Texas v. Sneed,

25 Tex. 66 (1860) . . . . . . . . . . . . . . . . . . . . . . . . 23

Thompson v. Utah,

170 U.S. 343 (1898) . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Hagler,

700 F.3d 1091 (7th Cir. 2012) . . . . . . . . . . . . . . 23

United States v. Sylla,

790 F.3d 772 (7th Cir. 2015) . . . . . . . . . . . . . . . 20

Weaver v. Graham,

450 U.S. 24 (1981) . . . . . . . . . . . . . . . . . . . . . . . 20

CONSTITUTION AND STATUTES

U.S. Const. art. I, § 10, cl. 1 . . . . . . . . . . . . . . passim

18 U.S.C. § 3297 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii

Cal. Penal Code § 803 . . . . . . . . . . . . . . . . . . . . . . . 16

Conn. Gen. Stat. § 54-193(b) . . . . . . . . . . . . . . . . . . 16

Del. Code Ann. 11, § 205(i) . . . . . . . . . . . . . . . . . . . 16

Fla. Stat. § 775.15(15)(a) . . . . . . . . . . . . . . . . . . . . . 16

Ga. Code Ann. § 17-3-1(d) . . . . . . . . . . . . . . . . . . . . 16

Haw. Rev. Stat. § 701-108(3)(c) . . . . . . . . . . . . . . . 16

Ind. Code § 35-41-4-2(b)(1) . . . . . . . . . . . . . . . . . . . 16

Kan. Stat. Ann. 2001 Supp. 21-3106(3)(a) . . . . . . . 16

Kan. Stat. Ann. 2001 Supp. 21-3106(4) . . . . . . . . . 16

La. C. Cr. P. Art 572(B) . . . . . . . . . . . . . . . . . . . . . . 16

Minn. Stat. § 628.26(f) . . . . . . . . . . . . . . . . . . . . . . 16

Mont. Code Ann. § 1-2-201 . . . . . . . . . . . . . . . . . . . . 7

Mont. Code Ann. § 45-1-201(1)(b) (1985) . . . . . . . . . 6

Mont. Code Ann. § 45-1-201(b) (1989) . . . . . . . . . . . 6

Mont. Code Ann. § 45-1-205(a) . . . . . . . . . . . . . . . . . 1

Mont. Code Ann. § 45-1-205 . . . . . . . . . . . . . . . . . . . 8

Mont. Code Ann. § 45-1-205(9) (2007) . . . . . . . . . . . 8

Mont. Code Ann. § 45-1-205(9)(b) (2001) . . . . . . . . . 7

Mont. Code Ann. § 45-1-206 . . . . . . . . . . . . . . . . . . . 6

N.D. Cent. Code § 29-04-03.1(2) . . . . . . . . . . . . . . . 16

Okla. Stat. tit. 22 § 152(2) . . . . . . . . . . . . . . . . . . . 16

Or. Rev. Stat. § 131.125(10) . . . . . . . . . . . . . . . . . . 16

viii

42 Pa. Code § 552(c)(1) . . . . . . . . . . . . . . . . . . . . . . 16

Utah Code § 76-1-302(2)(a) . . . . . . . . . . . . . . . . . . . 16

Utah Code § 76-1-302(3) . . . . . . . . . . . . . . . . . . . . . 16

OTHER AUTHORITIES

Cal Arango, Tim; Goldman, Adam; Fuller, Thomas,

To Catch a Killer: A Fake Profile on a DNA Site

and a Pristine Sample, N.Y. Times, April 27,

2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

J. Butler, Fundamentals of Forensic DNA Typing

270 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Congressional Budget Office Cost Estimate, H.R.

4323 Debbie Smith Reauthorization Act of 2014,

April 4, 2014, https://www.cbo.gov/publication/

45236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Linda Fairstein, Unsolved Rapes: How Testing the

Rape Kit Backlog Could Solve Thousands, The

Daily Beast, February, 25, 2011 . . . . . . . . . . . . 18

Fed. Bureau of Investigation, Frequently Asked

Questions on CODIS and NDIS, FBI CODIS and

NDIS Fact Sheet, https://www.fbi.gov/services/

laboratory/biometric-analysis/codis/codis-andndis-fact-sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jayme Fraser, Out of the Shadow: A Child Rape

Survivor’s Story, Billings Gazette, July 4, 2017,

https://billingsgazette.com/feature/a-child-rapesurvivor-s-story/article_21494ad1-6928-56b3b780-6ff9d7dd7af1.html . . . . . . . . . . . . . . . . . . . . 2

ix

Lynn Holdsworth, Is It Repressed Memory with

Delayed Recall or Is It False Memory Syndrome?

The Controversy and Its Potential Legal

Implications, 22 Law & Psychol. Rev. 103 (1998)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Meris Lutz, Rape Kit Backlog Yields New Leads in

Metro Atlanta Cold Cases, Atlanta JournalConstitution, June 1, 2018 . . . . . . . . . . . . . . . . 18

Heather Murphy, Genealogists Turn to Cousins’

DNA and Family Trees to Crack Five More Cold

Cases, N.Y. Times, June 27, 2018 . . . . . . . . . . . 19

Note, Does Time Eclipse Crime, Stogner v.

California and the Court’s Determination of the

Ex Post Facto Limitations on Retroactive Justice,

38 U. Rich. L. Rev. 1011 (2004) . . . . . . . . . . . . . 17

Oklahoma v. Harris, No. CF-2014-122, Order of

Defendant’s Demurrer to the Information and

Motion to Dismiss (Okla. Dist. Ct. May 5, 2015)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

RAINN, What Is A Rape Kit?, RAINN.org,

www.rainn.org/articles/rape-kit . . . . . . . . . . . . 15

Kyle Swenson, After 30 Years, Police Say They’ve

Captured A Child Killer Who Left A Sickening

Trail of Taunts, Washington Post, July 16, 2018

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Laurence H. Tribe, American Constitutional Law

(2d ed. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1

PETITION FOR A WRIT OF CERTIORARI

The State of Montana respectfully petitions for a

writ of certiorari to review the judgment of the

Montana Supreme Court in this case.

OPINIONS BELOW

The opinion of the Montana Supreme Court (Pet.

App. 1) is published at 421 P.3d 780. The relevant

order of the trial court is not reported, but is available

at Pet. App. 21.

JURISDICTION

The judgment of the Montana Supreme Court was

entered on July 5, 2018. Pet. App. 1. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 10, Clause 1 of the United States

Constitution provides: “No State shall . . . pass any . . .

ex post facto Law . . . .” The relevant statutory

provision, Montana Code Annotated § 45-1-205(9), is

set forth at Pet. App. 51.

INTRODUCTION

This Court had been in existence barely eight years

when it developed a four-part framework for analyzing

ex post facto cases in Calder v. Bull, 3 U.S. 386 (1798).

That framework endured for more than two centuries

as “an exclusive definition of ex post facto laws,” and its

essence can be summarized in familiar yet simple

terms: “Legislatures may not retroactively alter the

definition of crimes or increase the punishment for

2

criminal acts.” Collins v. Youngblood, 497 U.S. 37, 4243 (1990).

The Court’s 5-4 decision in Stogner v. California,

539 U.S. 607 (2003), changed course. For the first time,

the Court relied on what it described as an “alternate”

formulation to hold that a California law that revived

a statute of limitations that had expired was

impermissibly ex post facto. Although Stogner involved

unusual facts—sexual abuse first reported 25 years

after the crime and 22 years after the limitations

period expired—the rule the Court announced broadly

prohibits any legislative act that revives a statute of

limitations if the limitations period already expired.

539 U.S. at 632-33.

That rule has led to disastrous results in cases

where perpetrators evaded identification past the

limitations period and were later identified by DNA.

This case is a good example. When Linda Tokarski

Glantz was eight years old, a man broke into her

family’s home in the middle of the night and raped

her.1 Her rapist’s DNA was preserved, but it took

nearly 30 years before law enforcement was able to

match that DNA profile to Ronald Tipton. Like many

states, Montana has a statute allowing prosecution

within one year of a suspect’s DNA identification, even

if the limitations period has already expired. The

1

Linda was identified by her initials in the courts below, but she

has since publicly discussed what happened to her and has

expressed a desire to be identified by her full name. See Jayme

Fraser, Out of the Shadow: A Child Rape Survivor’s Story, Billings

Gazette, July 4, 2017, https://billingsgazette.com/feature/a-childrape-survivor-s-story/article_21494ad1-6928-56b3-b7806ff9d7dd7af1.html.

3

Montana Supreme Court, however, believed it was

bound by Stogner and ordered that the charges against

Tipton be dismissed.

Reviving a limitations period based on DNA

identification does not violate the Ex Post Facto Clause

because it does not retroactively alter the definition of

a crime or increase its punishment. Nor are the

concerns the Court identified in Stogner implicated

when a rape victim immediately reports the crime and

the suspect is identified years later by DNA testing.

This Court should grant certiorari and either limit

Stogner’s application or overrule it.

STATEMENT

A. Linda Tokarski Glantz’s Rape, DNA’s

Exoneration of a Wrongly-Convicted Man,

and Ronald Tipton’s Identification as the

Suspect Decades after the Crime.

On Friday, March 20, 1987, in a quiet neighborhood

in Billings, Montana, the Tokarski family ended their

day like any other and went to sleep. At around 4:30 in

the morning, while the five children and their parents

slept, a man slipped through a bathroom window that

was cracked open. Careful not to wake anyone, he

found his way to the upstairs bedroom of 8-year-old

Linda. Pet. App. 24.

He startled Linda awake by stuffing a cloth belt in

her mouth. He told her that he would kill her if she did

not keep quiet. He then removed the cloth belt, took

Linda’s clothes off, and began raping her. He raped her

orally, vaginally, and anally. When he was finished, he

put a pillow over Linda’s head and left. Id. 24-25.

4

In shock, and sure that he would kill her entire

family, Linda somehow summoned the courage to run

to her parents’ room and wake her father. She told him

what happened and the family frantically called the

police. Id. at 25.

The police began their investigation immediately.

Ibid. Within hours of the crime they completed a

composite sketch of the suspect, whom Linda described

as skinny with a moustache and red spots on his face.

They also collected physical evidence, including Linda’s

underwear, on which the Montana Crime Lab found

several samples of semen. The samples were preserved,

even though DNA forensic science was still too

undeveloped to be helpful in the case.2 Id. at 3, 26.

In the following weeks, the police investigation

focused on Jimmy Ray Bromgard after circumstantial

evidence connected him to the crime. Pet. App. 25. At

the same time, Respondent Ronald Tipton, who had not

surfaced as a suspect, decided to leave the State.

Testimony from Tipton’s then-wife indicates that the

decision to leave Billings was made hastily, and they

were gone within two weeks of the crime. Id. at 29.

Over the next year and a half, Tipton repeatedly

changed locations, moving between Washington, Utah,

and Arizona. Mot. To Dismiss Hr’g Tr. (“Tr.”), 31-35,

July 28, 2017.

Law enforcement eventually charged Bromgard

with three counts of rape, and he was convicted and

2

The Montana Supreme Court first approved the use of DNA in a

criminal trial in 1994. See Montana v. Moore, 885 P.2d 457, 464

(Mont. 1994).

5

sentenced in December of 1987. Pet. App. 3, 10.

Approximately nine months after Bromgard’s

sentencing, Tipton returned to Montana after spending

consecutive stints in jail in all three states he had

visited. Tr. 31-35.

By 2002, DNA science had progressed substantially,

and Bromgard requested that the biological material

from Linda’s underwear undergo DNA testing. Pet.

App. 3-4. That test conclusively proved that Bromgard

was not the source of the semen, and therefore

innocent. He was released from prison and the police

reopened the investigation into Linda’s rape. Ibid.

Investigators then entered the semen sample from

Linda’s underwear into the Combined DNA Index

System—known as CODIS. Id. at 4. CODIS is a set of

databases run in conjunction with the FBI that allows

law enforcement across the nation to compare DNA

samples in unsolved cases. CODIS was designed for

cases like Linda’s, where crime scene evidence yielded

a full DNA profile, but the suspect remains unknown.3

Pet. App. 25-26.

For more than a decade, DNA profiles from known

offenders were compared against the DNA profile from

Linda’s unknown attacker, but without success. The

investigation remained open, but cold—until 2014. In

2014, Ronald Tipton pleaded guilty to felony drug

possession and, as part of his plea, provided a DNA

sample. Pet. App. 28. When the Montana Crime Lab

3

See Fed. Bureau of Investigation, Frequently Asked Questions on

CODIS and NDIS, FBI CODIS and NDIS Fact Sheet,

https://www.fbi.gov/services/laboratory/biometric-analysis/codis/

codis-and-ndis-fact-sheet (last visited Sept. 30, 2018).

6

processed Tipton’s DNA, they received a CODIS “hit”

that matched Tipton’s DNA to the unknown profile

from Linda’s long-cold 1987 rape case. Id. at 26-27.

Following protocol, the Crime Lab ran the profile

again, and received the same result. Id. at 27. Based on

that analysis, the probability of an unrelated individual

from a random population having matching DNA is 1

in 2,603,000,000,000,000 Caucasians. Ibid. Law

enforcement then obtained a warrant for a DNA

sample from Tipton, which confirmed that Tipton’s

DNA profile matched the profile obtained from Linda’s

underwear. Id. at 28-29. The State charged Tipton with

three counts of sexual intercourse without consent.

B. Montana’s Statutes of Limitations for Sex

Crimes and the Underlying Proceedings.

Over the past three decades, the Montana

Legislature has repeatedly extended the statutes of

limitations that apply to sex crimes against children. In

1987, when Tipton allegedly raped Linda, a rape

prosecution had to be commenced within five years of

the rape if the victim was younger than sixteen. See

Mont. Code Ann. § 45-1-201(1)(b) (1985). In 1989, the

Legislature linked the limitations period to the victim’s

age and expanded the time to prosecute to five years

from the victim’s eighteenth birthday, if the victim was

a minor at the time of the rape. Mont. Code Ann. § 451-201(b) (1989). Additionally, under Montana law,

criminal statutes of limitations are tolled when the

offender is absent from the state. See Mont. Code Ann.

§ 45-1-206.

Linda turned 18 on May 8, 1996, meaning that,

barring any tolling, the State had until May 8, 2001, to

commence a prosecution for her rape. Of course, at this

7

time, police were not investigating the rape because

Bromgard had been convicted. Additionally, shortly

after Linda’s rape, Tipton fled Montana at the

beginning of April 1987, and he did not return until

September 1988. Pet. App. 29. Based on the record

presented below, the State conservatively estimates

that Tipton was absent from Montana for at least 526

days in the year and a half following the rape. Under

Montana’s tolling statute, Tipton’s absence would have

tolled the limitations period.

On May 1, 2001, Montana’s Governor signed a bill

expanding the time to charge a child rape until ten

years after the victim turned eighteen. Mont. Code

Ann. § 45-1-205(9)(b) (2001). That law did not include

an effective date within the legislation and so, by

default, it became effective on October 1, 2001. See

Mont. Code Ann. § 1-2-201 (without express effective

date, new laws automatically take effect on October 1).

Absent statutory tolling, the statute of limitations in

Linda’s case would have expired 146 days before that

amendment took effect. The 2001 statute of limitations

expanded the time to commence a prosecution until

May 8, 2006, Linda’s 28th birthday. In 2001, however,

Bromgard was still in prison for the crime of raping

Linda, and DNA testing would not exonerate him until

the next year. Pet. App. 25.

The 2007 Legislature took note that DNA forensic

science had become an invaluable tool for solving

crimes, sex crimes in particular. That session, the

Legislature enacted an exception to the statute of

limitations. Under the new provision, if DNA testing

“conclusively identified” a suspect after the limitations

period had expired for certain sex crimes, including

8

rape, then the State could nonetheless commence a

prosecution within one year of the suspect’s

identification. Mont. Code Ann. § 45-1-205(9) (2007).4

The new section exemplified “the law catching up with

science” and was designed to prosecute “cold cases”

where the time to prosecute had expired. Pet. App. 3536. The law became effective on October 1, 2007, 511

days after Linda’s 28th birthday. Applying the

remaining 380-day time period that Tipton was outside

Montana, the statute became effective 131 days after

the limitations period in Linda’s case would have run.

In 2014, when law enforcement matched Tipton’s

DNA to Linda’s unsolved 1987 rape, the State

commenced its prosecution under the DNA revival

statute, Mont. Code Ann. § 45-1-205(9). During the

trial court proceedings, Tipton moved to dismiss,

arguing that the statute of limitations had expired and

that applying the DNA exception to his circumstance

would amount to an ex post facto violation. In rejecting

the challenge, the district court relied heavily on

legislative hearings, which had emphasized the unique

ability of DNA to conclusively identify suspects in sex

crimes. According to the court, the intent of the DNA

exception was clear: “holding offenders accountable for

their crimes and protecting the victims of violent

sexual attacks.” Pet. App. 35, n.4. The hearings

highlighted three things: “(1) the importance and power

of DNA evidence; (2) the acceptance of DNA evidence

4

The provision reads in full: “If a suspect is conclusively identified

by DNA testing after a time period prescribed in subsection (1)(b)

or (1)(c) has expired, a prosecution may be commenced within 1

year after the suspect is conclusively identified by DNA testing.”

Mont. Code Ann. § 45-1-205(9).

9

as valid and reliable; and (3) the need for legal

evolution so that the law can keep pace with changes in

science and technology, while ensuring Constitutional

protections.” Id. at 37.

The trial court distinguished Tipton’s case from this

Court’s Stogner decision. First, Montana’s statute is

significantly narrower than the California statute at

issue in Stogner. Unlike the California law, which

permitted otherwise time-barred prosecution based on

delayed reporting, the Montana law permits revival

only if DNA conclusively identifies a suspect. Pet. App.

41-45. The court noted that this statute “ensures access

to justice for victims, while preventing prosecutions

against individuals without a conclusive DNA match.

The 2007 amendment is only triggered by conclusive

DNA analysis and requires immediate prosecution.” Id.

at 45. The court determined that the limited ability to

revive a sex crime prosecution based only on DNA

identification was a “key difference” between the

Montana law and the one reviewed in Stogner, and the

court noted that “Stogner never mentioned DNA

evidence in relation to the statute of limitation nor did

it address any amendment to a statute of limitation

dealing directly with DNA evidence” like Montana’s

law. Id. at 42-43.

The trial court also determined that Stogner was

distinguishable based on the ex post facto factors set

out in Calder v. Bull, 3 U.S. 386 (1798). First, the 2007

DNA exception did not punish an act that had been

lawful when committed; as now, rape was illegal in

1987. Id. at 45. Second, the law did not make the

punishment more burdensome. Id. at 46. The court

noted that the definition of the crime had not changed

10

and that Tipton’s potential sentence was based on the

law in effect in 1987 rather than the current sentencing

structure, with its mandatory minimums, sex offender

registration, and treatment provisions. Pet. App. 46,

n.5. Additionally, unlike the law at issue in Stogner,

which revived “any and all previous causes of action

that would have been time barred,” the “only way

[Tipton] could have been positively identified was by

having his DNA, in the Montana database as required

by statute, compared to the DNA left on [Linda’s]

underwear in the unsolved rape.” Id. at 46. Unlike

California’s law, “Montana’s law is highly specific and

requires a conclusive DNA match before prosecution

can occur.” Id. at 47. According to the court, the

concerns in Stogner—“lack of evidence and concerns

about problems with the memories of witnesses”—were

contrary to the evidence presented in the form of “DNA

and its scientific validation and uses.” Ibid.

Finally, the court noted that this case was factually

distinct from Stogner in that the victim immediately

reported the rape and that the suspect’s identity was

unknown. The court stated that “two particular facts

distinguish this case from Stogner and highlight the

manifest injustice” that would occur if the DNA

exception did not apply. Id. at 47-48. First, this case

did not involve familial rapes, delayed reporting, or

alleged false accusations. Rather, Linda reported the

rape immediately and a person was convicted for the

crime. It was only due to DNA testing that the person

who was incarcerated was exonerated. Id. at 48.

Second, the only reason Tipton was identified

through his DNA was due to a new criminal conviction;

but for his new offense, his identity would have

11

remained unknown and Linda’s rape would still be a

cold case. Ibid. Based on these distinctions, the court

opined “It is hard to believe these facts are the type

contemplated by the Stogner Court as it addressed the

California law allowing resurrection of any and all

previous rapes having been time barred. These facts

are wholly different from the Stogner facts.” Pet. App.

49 (emphasis in original). The district court thus held

that the DNA exception did not violate the Ex Post

Facto Clause.

The Montana Supreme Court reversed, ruling that

Stogner’s expansive holding covered Tipton’s case and

rendered the prosecution an ex post facto violation. The

Court framed the issue as follows: “Does a law that

purports to revive an expired statute of limitations

when a suspect is conclusively identified by DNA

evidence violate the Ex Post Facto Clause when the

statute of limitations for the charged crime expired

before the statute came into effect?” Id. at 12. The

Court viewed this as similar to the question resolved in

Stogner. Ibid.

In applying Stogner, the Montana Supreme Court

observed that Stogner had relied on Justice Chase’s

“alternative description” of what constitutes an ex post

facto violation to determine that a statute that revives

an expired statute of limitations fell within the second

Calder category: “Every law that aggravates a crime, or

makes it greater than it was, when committed.” Id. at

13 (quoting Calder, 3 U.S. at 389). The Court

recognized Stogner’s binding holding that reviving an

expired limitations period “aggravated the crime

because ‘it inflicted punishment for past criminal

conduct that (when the new law was enacted) did not

12

trigger any such liability.’” Ibid. (quoting Stogner, 539

U.S. at 613) (internal quotation marks omitted).

The Montana Supreme Court acknowledged that

the facts at issue in Tipton’s case “differ[ed] in

important respects from the facts in Stogner.” Pet. App.

17-18. The court noted that, unlike in Stogner, the rape

victim did not delay reporting the offense; the crime

was promptly investigated and prosecuted; the State

and victim believed the perpetrator had been convicted;

and Tipton was identified only because he committed

another crime and because of advances in DNA

technology. Id. at 17. But while the cases were

factually distinct, the Court could find no constitutional

distinction from Stogner, which left “no room to balance

the State’s and the victim’s interests against the

defendant’s constitutional right to be free from ex post

facto laws.” Id. at 17. “Strong as societal interests are,

Stogner offers no latitude to distinguish this case based

upon any of the grounds the State raises.” Id. at 17-18.

In sum, the Montana Supreme Court determined

that it was bound by Stogner and that, although

Tipton’s case differed in many respects, Stogner

required a reversal:

The crime against L.T. more than thirty

years ago was, and remains, a horrific, morally

repugnant act that the people of Montana expect

will be punished for the protection of the victim

and society. The State’s case against the alleged

perpetrator is strong, and the scientific evidence

is compelling. But the Supremacy Clause of the

United States Constitution, see U.S. Const. art.

VI, cl. 2, compels the judges of this State to

apply the federal constitution as interpreted by

13

the United States Supreme Court. Applying the

rule of law from Stogner, as we must, the State’s

arguments fail. Stogner compels us to hold that

the charges against Tipton must be dismissed.

Id. at 18.

REASONS FOR GRANTING THE PETITION

I. This Court Should Revisit Stogner v.

California, and Clarify that the Ex Post Facto

Clause Does Not Bar Revival of Statutes of

Limitations for Sex Crimes When DNA

Identifies A Suspect.

In Stogner v. California the Court held that reviving

a statute of limitations after it had expired violated the

Ex Post Facto Clause. 539 U.S. at 609. There, the

victim reported the sex abuse allegations for the first

time 25 years after they allegedly occurred, based on

recovered memory. Id. at 610, 631. The Court held that

to prosecute a defendant under those circumstances

was impermissibly ex post facto because it failed to

provide fair warning and was an example of arbitrary

and potentially vindictive legislation. Id. at 611, 63031.

The Court’s broad ruling has had unforeseeable and

likely unintended consequences for cold cases in which

a suspect, who has successfully evaded identification

and capture beyond the statute of limitations, is

identified for the first time through DNA that was

collected during the initial investigation. Advances in

DNA technology combined with cooperative efforts

among the states and federal government to enter and

track DNA profiles have led to a number of breaks in

sexual assault cold cases. Unfortunately, however,

14

suspects are often identified only after the statute of

limitations has expired.

Reviving a statute of limitations based on a

suspect’s identification from DNA evidence collected in

the initial investigation does not implicate the concerns

identified in Stogner—fair warning to the defendant

and avoiding vindictive and arbitrary legislation. This

Court should clarify that Stogner does not reach these

cases.

A. Stogner Allows Rapists Conclusively

Identified by DNA Who Have Evaded

Identification and Capture Beyond the

Limitation Period to Go Free.

Rape is a unique crime because the perpetrator

often leaves irrefutable evidence of his identity. Semen

from an assault produces a DNA profile that makes it

possible to “match[] a suspect with near certainty.”

Maryland v. King, 569 U.S. 435, 443 (2013); id. at 461

(recognizing “the unmatched potential of DNA

identification”). DNA technology is “one of the most

significant scientific advancements of our era,” and has

the “unparalleled ability both to exonerate the wrongly

convicted and to identify the guilty.” Id. at 442 (quoting

District Attorney’s Office v. Osborne, 557 U.S. 52, 55

(2009)). Indeed, in this case it did both: DNA

exonerated Bromgard and identified Tipton as the

suspect.

But to gather that crucial DNA, the victim first

must endure a sexual assault forensic examination.

The process for collecting the evidence, known as a

rape kit, lasts between two and six hours and must be

completed within 72 hours of the rape. Between the

15

rape and the exam, the victim cannot bathe or shower.

She cannot change her clothes or comb her hair. She’s

discouraged from even using the restroom. During the

exam, the victim stands alone on a white sheet while

undressing and every piece of evidence—hair, fibers,

tissue, blood, semen—is methodically collected and

preserved. She is photographed from every angle.

Swabs and samples are taken from private places that

just hours earlier were violently attacked.5

Thousands of women suffer this process every year

for one purpose: to bring the perpetrator to justice. But,

sadly, justice is often deferred. “It is a well recognized

aspect of criminal conduct that the perpetrator will

take unusual steps to conceal not only his conduct, but

also his identity.” King, 569 U.S. at 450 (quotation

omitted). As a result, many of these cases quickly go

cold unless additional leads point to a suspect. The

perpetrator’s DNA, however, does not fade like a

memory. It sits preserved in a database on the chance

that the perpetrator will slip up.

And they usually do slip up, though sometimes not

until many years later. It is not uncommon that “people

detained for minor offenses can turn out to be the most

devious and dangerous criminals.” Id. at 450 (quoting

Florence v. Bd. of Chosen Freeholders, 566 U.S. 318,

334 (2012)). In this case, for example, Tipton’s DNA

was collected after he was caught growing marijuana

plants in his trailer home.

5

See, generally RAINN, What Is A Rape Kit?, RAINN.org,

www.rainn.org/articles/rape-kit (last visited September 7, 2018).

16

But too often, as in this case, suspects effectively

conceal their identities and evade capture until after

the statute of limitations has expired. Recognizing this

problem and the unique reliability of DNA, Montana,

the federal government, and at least 14 other states

have enacted legislation that allows prosecutions for a

limited time (usually between 1-3 years) after DNA

identifies a suspect, notwithstanding an expired

statute of limitations.6

This Court’s Stogner decision, however, blocks

prosecution if the statute authorizing revival was

enacted after the limitations period expired. The Court

limited its ruling to statutes of limitations that had

already expired, exempting cases in which the

legislature extended the statute of limitation after the

crime was committed, but before the limitations period

expired. Id. at 613, 618.

Stogner’s holding prevents any prosecutions if a

limitations period has expired, even if the victim

reported the crime immediately and a suspect is later

identified through DNA evidence collected during the

initial investigation. As the Kansas Supreme Court

6

See 18 U.S.C. § 3297; Cal. Penal Code § 803; Conn. Gen. Stat.

§ 54-193(b); Del. Code Ann. 11, § 205(i); Fla. Stat. § 775.15(15)(a);

Ga. Code Ann. § 17-3-1(d); Haw. Rev. Stat. § 701-108(3)(c); Ind.

Code § 35-41-4-2(b)(1); La. C. Cr. P. Art 572(B); Minn. Stat.

§ 628.26(f); N.D. Cent. Code § 29-04-03.1(2); Or. Rev. Stat.

§ 131.125(10); Okla. Stat. tit. 22 § 152(2); 42 Pa. Code § 552(c)(1);

Utah Code § 76-1-302(2)(a), (3). A sixteenth state, Kansas,

previously had a DNA revival statute for sexual assaults. Kan.

Stat. Ann. 2001 Supp. 21-3106(4), (3)(a). But that law was repealed

after the Kansas Supreme Court ruled it unconstitutional under

Stogner. See Garcia, 169 P.3d at 1075.

17

recognized, “‘[s]ince Stogner did not carve out an

exception for DNA evidence, it appears that even nearperfect reliability in linking a defendant to a crime will

be insufficient to justify reviving a time-barred

prosecution.’” Kansas v. Garcia, 169 P.3d 1069, 1075

(Kan. 2007) (overturning rape conviction and ruling

DNA exception unconstitutional) (quoting Note, Does

Time Eclipse Crime, Stogner v. California and the

Court’s Determination of the Ex Post Facto Limitations

on Retroactive Justice, 38 U. Rich. L. Rev. 1011, 1043

(2004)); see also Pet. App. 17.7 Thus, unless the

perpetrator also committed murder, for which no state

has a statute of limitations, he will likely never be

prosecuted if he evades identification and capture past

the limitations period. Indeed, in these situations most

prosecutors will not even charge a suspect identified by

DNA because of Stogner’s broad ruling.

Stogner is having a particularly harsh impact on

law enforcement’s ability to prosecute cold cases in

recent years because suspects in sex crime cases are

being identified at an unprecedented rate. Two reasons

explain the uptick. First, the federal government

appropriated nearly a billion dollars between 20152019 to help states “enhance the analysis of DNA

samples,” especially backlogged samples. Congressional

Budget Office Cost Estimate, H.R. 4323 Debbie Smith

7

See also State ex rel. Nicholson v. Louisiana, 169 So. 3d 344 (La.

2015) (same); Oklahoma v. Harris, No. CF-2014-122, Order of

Defendant’s Demurrer to the Information and Motion to Dismiss

(Okla. Dist. Ct. May 5, 2015) (same).

18

Reauthorization Act of 2014, April 4, 2014.8 Thanks to

that joint effort, thousands of cold case DNA profiles

have been added into CODIS, which in turn has offered

victims of unsolved crimes hope. See e.g., Linda

Fairstein, Unsolved Rapes: How Testing the Rape Kit

Backlog Could Solve Thousands, The Daily Beast,

February, 25, 2011; Meris Lutz, Rape Kit Backlog

Yields New Leads in Metro Atlanta Cold Cases, Atlanta

Journal-Constitution, June 1, 2018. Of course many of

these cases are sexual offenses in which the statute of

limitations has expired. Because of Stogner,

prosecutors will not charge them.

The second factor that has increased the number of

identifications in cold cases is the recent development

of a new investigative technique using DNA evidence.

The technique started with the capture of Joseph

DeAngelo in California in April, 2018. DeAngelo is

accused of raping more than 50 women and killing

twelve people in California between 1974 and 1986.

Despite a massive multi-jurisdictional manhunt,

DeAngelo evaded identification and capture for nearly

44 years. Throughout that time, several potential

suspects were identified, but they were cleared by DNA

evidence collected from the crimes. Finally, in April

2018 an investigator entered the perpetrator’s

unidentified DNA profile into an open source genealogy

website. See Cal Arango, Tim; Goldman, Adam; Fuller,

Thomas, To Catch a Killer: A Fake Profile on a DNA

Site and a Pristine Sample, N.Y. Times, April 27, 2018.

That narrowed the field of potential suspects to a very

small familial group. Investigators quickly focused on

8

https://www.cbo.gov/publication/45236 (last visited September 21,

2018).

19

DeAngelo, who was living in a suburban Sacramento

neighborhood with his daughter and granddaughter.

After obtaining DeAngelo’s DNA, law enforcement

matched him to the preserved DNA from the serial

rapes. Police arrested him, and charged him with

twelve homicides. But like Tipton, DeAngelo will not be

prosecuted for the dozens of rapes he allegedly

committed. Ibid.

Investigators are using that same technique to

break cold cases nationwide. Heather Murphy,

Genealogists Turn to Cousins’ DNA and Family Trees

to Crack Five More Cold Cases, N.Y. Times, June 27,

2018. But unless the perpetrators committed murder,

they likely will not be charged for any crime because of

Stogner. Police will not even arrest suspected rapists if

the limitations period had expired because they know

that they cannot be prosecuted in light of Stogner’s

broad holding.

B. The Rule from Stogner Should Not Apply

Where There Is No Delay in Reporting the

Rape and DNA Evidence Identifies a

Suspect after the Statute of Limitations

Expired.

The Stogner majority’s holding that “a law enacted

after expiration of a previously applicable limitations

period violates the Ex Post Facto Clause when it is

applied to revive a previously time-barred prosecution”

was unnecessarily broad. Stogner, 539 U.S. at 623-33.

The Court should clarify that, although the California

law at issue in Stogner may have violated the Ex Post

Facto Clause, not every law that revives a limitations

period does so. Specifically, the Court should hold that

reviving a statute of limitations based on identification

20

of a suspect from DNA collected as part of the initial

investigation does not violate the Ex Post Facto Clause.

A primary reason the Stogner majority gave for its

holding was that the California law implicated the

harms that the Ex Post Facto Clause sought to avoid.

Stogner, 539 U.S. at 611. The Court has repeatedly

recognized two overarching purposes of the Ex Post

Facto Clause, which guide its application: (1) protecting

defendants from “arbitrary and vindictive legislation”;

and (2) providing “fair warning.” Stogner, 539 U.S. at

611; see also Calder, 3 U.S. at 389; Weaver v. Graham,

450 U.S. 24, 28-29 (1981); Miller v. Florida, 482 U.S.

423, 429-30 (1987). Those purposes do not apply to cold

cases involving sex crimes where the victim did not

delay reporting the crime and DNA evidence was

collected during the initial investigation.

The Ex Post Facto Clause’s first purpose is not

implicated because there is no danger that a legislature

is acting arbitrarily or vindictively when it enacts a

DNA revival statute. No evidence is more detached and

dispassionate than DNA. Unlike other types of

evidence, “it is not subject to the judgment of officers”

who may have personal bias or emotional responses to

suspects, and it leaves no discretion with those testing

the DNA. King, 569 U.S. at 448 (citation omitted);

accord United States v. Sylla, 790 F.3d 772, 774 (7th

Cir. 2015) (recognizing that CODIS operates in a

manner that safeguards against “arbitrary and

discriminatory enforcement”). In other words, there is

no possible danger that these laws are “violent acts

which might grow out of the feelings of the moment.”

Stogner, 539 U.S. at 611 (quoting Fletcher v. Peck, 10

U.S. 87, 137-38 (1810)); see also Calder, 3 U.S. at 389

21

(“With very few exceptions, the advocates of such [ex

post facto] laws were stimulated by ambition, or

personal resentment, and vindictive malice.”).

Moreover, there is nothing arbitrary about DNA

testing. The Court in King described the meticulously

standardized process of DNA analysis through the

FBI’s CODIS database, which “connects DNA

laboratories at the local, state, and national level.”

King, 569 U.S. at 444. “To participate in CODIS, a local

laboratory must sign a memorandum of understanding

agreeing to adhere to quality standards and submit to

audits to evaluate compliance with the federal

standards for scientifically rigorous DNA testing.” Id.

at 445 (citing J. Butler, Fundamentals of Forensic DNA

Typing 270 (2010)). Montana’s crime lab, like every

other states’, complies with those quality standards,

which is confirmed by regular audits of the lab. Tr. 8889.

Additionally, DNA testing does not lend itself to

vindictive investigation. Every DNA profile is

anonymous to the analyst. Profiles are assigned an

identifying number and stripped of any personally

identifying information when entered into CODIS. Tr.

60. (“All offender profiles are assigned a specific DNA

number that is separated from the individual’s name

and identifying information, so CODIS does not

contain . . . any identifying information as far as name,

date of birth, Social Security number, that kind of

thing.”). A separate database that is maintained on a

separate network contains the personally identifying

information that can be accessed once CODIS signals

a positive match. Tr. 61.

22

The result is a system that is safeguarded from

human bias, vindictive purpose, or even a margin of

error in identifying suspects. Tr. 92 (“We don’t have

margin of error or tolerance in DNA. I mean the profile

is the profile . . . margin of error comes into play and

tolerance more in like toxicology type testing where

they’re measuring quantities of things, and DNA is not

that way.”); see also Pet. App. 27. In this case for

example, law enforcement did not have suspects who

they were trying to build a case against. The case was

cold. The crime lab analyst simply entered Tipton’s deidentified profile into CODIS and it rendered a hit. Pet.

App. 26-27.

The Ex Post Facto Clause’s second purpose—fair

warning to the defendant—is also not implicated in

cases involving a DNA exception to a statute of

limitations. In Stogner, the alleged crime was not

reported for at least 25 years after the offense, and

thus, “the accused lacked notice that he might be

prosecuted” so many years later. Stogner, 539 U.S. at

621, 631. That problem was compounded because the

allegations were based on repressed memory. Id. at

631. (“Such problems can plague child abuse cases,

where recollection after so many years may be

uncertain, and ‘recovered’ memories faulty, but may

nonetheless lead to prosecutions that destroy

families.”) (citing Lynn Holdsworth, Is It Repressed

Memory with Delayed Recall or Is It False Memory

Syndrome? The Controversy and Its Potential Legal

Implications, 22 Law & Psychol. Rev. 103, 103-104

(1998)).

The Court’s concerns with repressed memory are

simply not at play in DNA identification because the

23

effectiveness of a DNA profile does not diminish over

time. As the Seventh Circuit noted, “[s]tatutes of

limitations exist, in part, to protect people from having

to defend against charges where the basic facts may

have become obscured by the passage of time. . . . But

properly stored DNA evidence, unlike most other kinds

of evidence, can maintain its reliability for decades.”

United States v. Hagler, 700 F.3d 1091, 1098 (7th Cir.

2012) (internal citations omitted). This case illustrates

the point. The crime was reported immediately, and the

DNA evidence was collected as part of that initial

investigation. Pet. App. 25-26. The perpetrator

certainly had fair warning that he would be prosecuted,

as soon as he was identified and captured. Thus, a case

like this one in which the perpetrator’s identity

remains unknown, despite active investigation, is not

an example of the “state having neglected to prosecute

within the time prescribed for its own action. . . .”

Stogner, 539 U.S. at 629 (quoting Texas v. Sneed, 25

Tex. 66 (1860)). That is particularly true here, where

the State prosecuted and convicted a suspect who

thankfully was exonerated by DNA. And “[t]here can be

no contention that they were not adequately

forewarned both that their conduct was prohibited and

of its consequences.” Harisiades v. Shaughnessy, 342

U.S. 580, 593 (1952); accord Dobbert v. Florida, 432

U.S. 282, 297 (1977) (upholding law against ex post

facto challenge that “provided fair warning as to the

degree of culpability”).

Moreover, the law at issue in Stogner was both

broad and unusual, which should serve to limit

Stogner’s application. The Court described the law as

“a kind of extreme variant that . . . has not likely been

often enacted in our Nation’s history.” Stogner, 539

24

U.S. at 630. Montana’s law, on the other hand, is quite

narrow—applying only to certain sexual crimes and

only where DNA conclusively identifies a suspect. At

least 14 other states and the United States have

enacted DNA exception laws. This is especially

significant, given that these laws were enacted even in

the face of Stogner’s broad rule banning their

application to cases in which the statute of limitation

has already expired.

When a crime is reported and investigated, a

perpetrator is on notice that he will be prosecuted once

he is identified. Perpetrators who commit these crimes

but evade identification and capture should have no

legitimate claim to repose nor any reliance interest in

an expired statute of limitations. They are not

surprised when they are finally apprehended. Take for

example John Miller, who is accused of raping and

killing an eight-year-old girl in 1988. Following

DeAngelo’s arrest in California, Indiana investigators

used the same technique and connected Miller’s DNA

to the rape. Kyle Swenson, After 30 Years, Police Say

They’ve Captured A Child Killer Who Left A Sickening

Trail of Taunts, Washington Post, July 16, 2018. When

investigators showed up at Miller’s house to question

him, they asked if he knew why they were there. He

simply replied, “April Tinsley.” Ibid.

Stogner bars Indiana from charging Miller for April

Tinsley’s rape, just like it bars Montana, California,

and every other state that is identifying suspects in

unsolved rapes. States may have good reason to retain

statutes of limitations, but they should not be put to an

all-or-nothing proposition, particularly given the

advances in DNA identification. States should be

25

allowed to revive statutes of limitation when DNA

collected as part of the initial investigation identifies a

suspect, and this Court should take the opportunity to

hold that the Ex Post Facto Clause does not stand in

their way.

II. Alternatively, This Court Should Overrule

Stogner, Which Stands Doctrinally Discordant

from the Court’s Ex Post Facto Precedent.

The Court’s 5-4 decision in Stogner is an outlier in

its Ex Post Facto jurisprudence because it is the only

non-overruled case to go beyond Justice Chase’s

definitive and exclusive description of the Clause’s

boundaries, set forth in Calder, 3 U.S. at 390. Justice

Chase recognized that “[t]he prohibition, ‘that no state

shall pass any ex post facto law,’ necessarily requires

some explanation; for, naked and without explanation,

it is unintelligible, and means nothing.” Ibid. He then

offered his summation of the Clause’s reach:

I will state what laws I consider ex post facto

laws, within the words and the intent of the

prohibition. 1st. Every law that makes an action

done before the passing of the law, and which

was innocent when done, criminal; and punishes

such action. 2d. Every law that aggravates a

crime, or makes it greater than it was, when

committed. 3d. Every law that changes the

punishment, and inflicts a greater punishment,

than the law annexed to the crime, when

committed. 4th. Every law that alters the legal

rules of evidence, and receives less, or different,

testimony, than the law required at the time of

26

the commission of the offense, in order to convict

the offender.”

Id. at 390-91.

The Court has repeatedly affirmed this formulation

“as an exclusive definition of ex post facto laws.”

Collins, 497 U.S. at 39 (citing Fletcher v. Peck, 10 U.S.

87, 138 (1810)); See Carmell v. Texas, 529 U.S. 513, 539

(2000) (“Accordingly, Collins held that it was a mistake

to stray beyond Calder’s four categories”); Gut v.

Minnesota, 76 U.S. (9 Wall.) 35, 38 (1869); Cummings

v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867). In

Collins, the Court summarized the crux of Justice

Chase’s formulation, noting simply that the original

understanding of the Ex Post Facto Clause is

uncomplicated: “Legislatures may not retroactively

alter the definition of crimes or increase the

punishment for criminal acts.” 497 U.S. at 43.

Rather than following Justice Chase’s “exclusive

definition,” the Stogner majority looked to what it

described as an “alternate” description. Stogner, 539

U.S. at 612. Specifically, the Court viewed Justice

Chase’s observation that “at other times they inflicted

punishments, where the party was not, by law, liable to

any punishment” Calder, 3 U.S. at 389, as an

expansion of Justice Chase’s second category

prohibiting aggravation of a crime. “The second

category—including any ‘law that aggravates a crime,

or makes it greater than it was, when committed’ id. at

390—describes California’s statute as long as those

words are understood as Justice Chase understood

them—i.e., as referring to a statute that ‘inflict[s]

punishments, where the party was not, by law, liable to

any punishment,’ id. at 389.” Stogner, 539 U.S. at 613

27

(citation altered from original). The majority viewed

the second category as applicable in Stogner because

“[a]fter (but not before) the original statute of

limitations had expired, a party such as Stogner was

not ‘liable to any punishment.’ California’s new statute

therefore ‘aggravated’ Stogner’s alleged crime, or made

it ‘greater than it was, when committed,’ in the sense

that, and to the extent that, it ‘inflicted punishment’ for

past criminal conduct that (when the new law was

enacted) did not trigger any such liability.” Stogner,

539 U.S. at 613.

Justice Kennedy correctly pointed out that Stogner

was the first and only time the Court had strayed from

Justice Chase’s four categories to find “alternate”

categories as authoritative. Id. at 635-36 (Kennedy, J.,

dissenting). Justice Chase himself warned against

expansion of the Clause’s application, noting that its

history and purposes dictated a narrow application:

“But I will go no farther than I feel myself bound to do;

and if I ever exercise the jurisdiction I will not decide

any law to be void, but in a very clear case.” Calder, 3

U.S. at 395 (emphasis added). Justice Patterson’s

concurrence also emphasized the Clause’s narrow

application: “From the above passages it appears, that

ex post facto laws have an appropriate signification;

they extend to penal statutes, and no further; they are

restricted in legal estimation to the creation, and,

perhaps, enhancement of crimes, pains and penalties.”

Id. at 397 (Patterson, J., concurring).

The Stogner majority drew from what it described

as a “complicated history” (id. at 623) to support its

holding, as well as cases that had eschewed Justice

Chase’s four part framework and instead adopted an

28

expanded view of the Ex Post Facto Clause. See

Stogner, 539 U.S. at 636 (citing Moore v. New Jersey, 43

N.J.L. 203, at 216, 220 (1881)). As Justice Kennedy

noted, the authority that the Stogner majority relied on

had rejected that the Ex Post Facto Clause was limited

to the Calder formulation. Id. at 637-38 (Kennedy, J.,

dissenting).

The Court has not shied from correcting “departure

from Calder’s explanation of the original

understanding of the Ex Post Facto Clause.” Collins,

497 U.S. at 49. In Collins the Court overruled two

decisions that incorrectly expanded Calder’s categories,

Kring v. Missouri, 107 U.S. 221 (1883) and Thompson

v. Utah, 170 U.S. 343 (1898). Kring had held that an ex

post facto law is one that, “in relation to the offense or

its consequences, alters the situation of a party to his

disadvantage.” 107 U.S. at 228-29 (quotation omitted).

Thompson had held that an ex post facto law was one

that deprived a defendant of “a substantial right

involved in his liberty.” 170 U.S. at 352. The Court

rejected both of these broad formulations because they

were inconsistent with the framer’s understanding of

what constituted an ex post facto law. The Court noted

that other formulations that may have been

misinterpreted too broadly were “simply shorthand for

legal changes altering the definition of an offense or

increasing a punishment.” Collins, 497 U.S. at 49. The

Court overruled these decisions because they expanded

the Clause’s application beyond Calder’s categories,

and thus “depart[ed] from the meaning of the Clause as

it was understood at the time of the adoption of the

Constitution.” Id. at 50. It should do so again here.

29

Stogner’s distinction between extending expired and

unexpired statutes of limitations, 539 U.S. at 613, 618,

highlights its departure from longstanding precedent

in still another way. The distinction makes sense only

if perpetrators gain a vested reliance interest once the

statute of limitations expires. Id. at 631. Stogner

marked the first time the Court recognized an

accused’s “reliance interests” as an independent

purpose underlying the Ex Post Facto Clause. But the

right to a reliance interest makes little sense in the

criminal context because there was never a question

that the perpetrator’s conduct was unlawful. As one

commentator noted, “Values of reliance and repose fit

comfortably the paradigm of conduct that the society

wishes (or once wished) to encourage, but such values

are distinctly less well suited to the paradigm of action

that all admit should never have taken place.”

Laurence H. Tribe, American Constitutional Law 62930 (2d ed. 1988).9 Simply because the perpetrator has

evaded discovery is no reason he should have a reliance

interest in a statute of limitations. As Justice Kennedy

noted, “We should consider whether it is warranted to

presume that criminals keep calendars so they can

mark the day to discard their records or to place a

gloating phone call to the victim.” Stogner, 539 U.S. at

650 (Kennedy, J., dissenting). In any event, recognizing

a perpetrator’s reliance interest makes no sense when

9

Even if the interest was relevant in Stogner because of the long

delay in reporting (Stogner, 539 U.S. at 631), that interest has

little weight in cases involving DNA revival statutes, where there

is no delay in reporting the crime and the suspect is identified

through preserved DNA evidence, see Section I, supra. Moreover,

any reliance interest rising from lengthy delay would still be

entitled to protection under the Due Process Clause.

30

a crime has been reported and investigated, and the

only reason the perpetrator has not been charged is

that he has not yet been identified or because someone

else has been wrongly convicted.

This Court should grant certiorari to re-align its Ex

Post Facto Clause jurisprudence and once again affirm

that Justice Chase’s four categories form the Clause’s

exclusive parameters.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

Respectfully submitted,

C. Mark Fowler

Appellate Bureau Chief

Tammy A. Hinderman

Assistant Attorney General

Appellate Services Bureau

Montana Department of

Justice

Scott Twito

Yellowstone County

Attorney

Room 701, Courthouse

P.O.Box 35025

Billings, MT 59107-5025

Timothy C. Fox

Montana Attorney General

Dale Schowengerdt

Solicitor General

Counsel of Record

Matthew T. Cochenour

Assistant Attorney General

215 N. Sanders St.

Helena, MT 59601

DaleS@mt.gov

(406) 444-2026

Counsel for Petitioner