# Opposition Brief — Ford v. Montana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 973

## Text

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onic IN THE

SUPREME COURT OF THE UNITED STATES

EUGENE FORD,

Petitioner,
Vv.

STATE OF MONTANA,

Respondent.

On Petition for a Writ of Certioran
to the Montana Supreme Court

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

MIKE McGRATH

Attorney General of Montana

MARK W. MATTIOLI*

Assistant Attorney General
*Counsel of Record

215 North Sanders

P.O. Box 201401

Helena, MT 59620-14
(406) 444-2026 2 RECEIVED |
SEP 23 ‘09

OFFICE OF THE Ci
L_SUPREME COURT. US |

ISSUE PRESENTED
After the venire was dismissed and the selected jury was sworn, Ford's trial
counsel asserted that the prosecution’s striking of six women from the venire deprived
Ford of his right to a “jury by his peers.” In an interwoven analysis of federal and state
law, the Montana Supreme Court determined that the objection was untimely. At issue
here is whether this Court should grant a wnt of certiorari to determine whether the

Montana Court’s decision was procedurally novel.

TABLE OF CONTENTS

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1. The Montana Court’s Decision Was Consistent With Batson
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No. 00-337

IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 230

STATE OF MONTANA,
Plaintiff/Respondent, a
v. : eed Sant

EUGENE FORD,

Defendant/Appellant. eee te er, epee

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

Kristina Guest, Appellate Defender Office, Helena, Montana

For Respondent:

Mike McGrath, Montana Attomey General, Mark W. Mattioli, Assistant
Attomey General, Helena, Montana; Brant S. Light, Cascade County Attomey,
Great Falls, Montana

Heard: July 24, 2001
Submitted: August 9, 2001
Decided: November 20, 2001

Filed:

rk

Justice Patricia O. Cotter delivered the Opinion of the Court.

q! On November 12, 1999, a unanimous jury in the Eighth Judicial District, Cascade
County, found Eugene Ford (Ford) guilty of deliberate homicide, a felony. He was sentenced
to the Montana State Prison for life and was declared ineligible for parole. Ford appeals
from this verdict and sentence.

92 The issue presented for review is whether the District Court properly denied Ford's
motion for the impanelment of a new jury. Ford alleges that the State violated his equal
protection rights by improperly exercising its peremptory challenges so as to exclude women
from Ford's jury panel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

93 ‘In March 1999, Ford was charged with the offense of deliberate homicide involving
the death of his roommaie, Michael Paul. Ford's trial commenced on November 8, 1999, with
selection of the jury. A review of the trial Transcript indicates the venire, comprised of fifty
prospective jurors, appeared as instructed and were swom as to their qualifications to serve
as trial jurors in the case at bar. From the list of names of the prospective jurors, it appears
the venire was evenly split between males and females. The first twenty-four prospective
jurors, sixteen females and eight males, were drawn and the State's voir dire examination
commenced. One male was excused for cause and replaced by another male. The State then
passed the prospective jurors for cause and Ford's attorney ccnducted his voir dire

examination. He challenged two female prospective jurors for cause, and they were excused

and replaced by two males. One of these males was then excused for cause and replaced
with another male. At this point, the prospective jury panel consisted of fourteen females and
ten males.

94 Each party was allotted six peremptory challenges. The State exercised its peremptory
challenges, excusing six females from the prospective jury panel. Ford then exercised his
peremptory challenges, excusing four females and two males. Three prospective alternate
jurors were drawn, two males and one female. The State excused one male and Ford excused
one male. The final jury, comprised of eight males, four females and one female alternate
juror, was then sworn, and the remaining venirepersons were dismissed with the thanks of
the Court.

q5 After the jury was swom and the venire dismissed, and outside the presence of the
jury, Ford's attorney then moved for a new jury pool, claiming the State had exercised its
peremptory challenges "in violation of [Ford's] right to a jury by his peers" by striking six
women. The State, without verbal prompting from the District Court, offered explanations
for striking five of the six excused prospective jurors. The District Court noted Ford's
objection, but without explanation or reason, overruled his objection. The trial then
proceeded.

46 Upon completion of the trial, a unanimous jury found Ford guilty of deliberate

homicide. He was sentenced to the Montana State Prison for life and was declared ineligible

for parole.

STANDARD OF REVIEW
47 The issue of gender discrimination in jury selection is a case of first impression for
this Court, and while the parties do not agree as to the appropriate standard of review this
Court should apply to the case at bar, it is well established that when considering a Batson
challenge, i.e., a challenge that a litigant has exercised its use of peremptory strikes in a
discriminating manner, an appellate court will defer to the tral court's findings of fact unless
clearly erroneous, and will review the trial court's application of the law de novo. Tolbert
v. Page (9th Cir. 1999), 182 F.3d 677, 1999 U.S. App. LEXIS 14201. See also Brewer v.
Marshall (\st Cir. 1997), 119 F.3d 993, 1997 U.S. App. LEXIS 18147.

DISCUSSION

§8 | In making his objection at trial to the peremptory challenges exercised by the Staite,
Ford’s counsel claimed that the State had violated his nght “to a jury by his peers.” It was
not until he filed his appeal that Ford first labeled his dispute over the State’s exercise of
peremptory challenges a “Batson” challenge. (Appellant's Brief, p. 17). Because this Court
has not previously addressed Batson and its progeny, we deem it appropnate to briefly review
the history and evolution of the Batson challenge to jury composition.
99 Allcitizens of this country and of this state are guaranteed equal protection under the
laws by the United States Constitution and the Montana Constitution. Section | of the
Fourteenth Amendment of the United States Constitution reads:

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.
q10 Article II, Section 4 of the Montana Constitution reads:

The dignity of the human being is inviolable. No person shall be denied the

equal protection of the laws. Neither the state nor any person, firm,

corporation, or institution shall discriminate against any person in the exercise

of his civil or political rights on account of race, color, sex, culture, social

origin or condition, or political ov religious ideas.
These constitutional provisions are intended to eliminate governmental discrimination based
upon race, gender, religion, or political philosophy.
qi1 ‘Ina landmark case in 1880, the United States Supreme Court, explaining a function
of the recently ratified Fourteenth Amendment (1868), informed the State of West Virginia
that its juror qualification statute, allowing only "white male persons” to be eligible for jury
service, was 2 violation of a black defendant's right to a jury selected "without discrimination
against all persons of his race or color, because of their race or color." Strauder v. West
Virginia (1880), 100 U.S. 303. In 1881, the facts of Neal v. Delaware, 103 U.S. 370,
prompted the U.S. Supreme Court to extend Strauder by holding that Delaware's refusal to
call black citizens to jury duty was also unconstitutional. Since that time, the Fourteenth
Amendment has repeatedly been invoked to support the eradication of discrimination in the
jury selection process.

412 While these early Supreme Court opinions instructed states to include black citizens

in venires, they failed to guarantee that black citizens would actually serve on juries.

5

Through the use of peremptory challenges, prosecutors were for many years generally
successful in eliminating black juror participation. Stephen R. DiPrima, Note: Selecting a
Jury in Federal Criminal Trials After Batson and McCollum, 95 Colum. L. Rev. 888, 900
(1995).

413 Courts throughout our history have lauded the importance of peremptory challenges
to our judicial system. The peremptory challenge "is one of the most important of the nghts
secured to the accused." Pointer v. United States (1894), 151 U.S. 396, 408, 14 S.Ct. 410,
414, 38 L.Ed. 208, 214. It is "an essential part of the trial," and, more specifically, it is
"essential to the faimess of trial by jury." Lewis v. United States (1892), 146 U.S. 370, 376,
13 S.Ct. 136, 138, 36 L.Ed. 1011, 1014. See also, Holland v. Illinois (1990), 493 U.S. 474,
484, 110 S.Ct. 803, 809, 107 L.Ed.2d 905, 919.

914 Peremptory challenges are used during voir dire to stike members of the venire who
the striking party prefers not to have on the jury, usually because of a perceived bias on the
part of the potential juror. Unlike strikes for "cause," which are accompanied by an
expressed reason for the strike, peremptory strikes may be exercised without having to
explain the reason behind them. Peremptory strikes are often based primarily on instinct, and
are cherished tools, guarded protectively by litigators. It in undeniable, though, that an
unfortunate consequence of not having to explain the peremptory strike has been that persons

have been excluded from jury participation because of their race or gender. However, as

long as the use of the peremptory challenge was unfettered, any discriminatory motive would

be unproven and, in any event, immaterial.

q!5 The unrestrained use of peremptory challenges came to an end with Batson v.

Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. In Batson, the U.S. Supreme

Court developed the rule that the state, in a criminal case, cannot utilize its peremptory
challenges to remove prospective jurors on the sole basis of race. Batson was a black man

indicted in Kentucky on charges of second degree burglary and receipt of stolen goods.

During jury selection, the prosecutor used his peremptory challenges to strike all four black
persons on the venire, and an all-white hey convicted Batson on both counts. Defense
counsel argued to the trial court at the time of jury selection that the prosecutor's use of his
peremptory challenges violated Batson's rights under the Sixth and Fourteenth Amendments.

In keeping with the attitude that peremptory challenges were sacred, the trial court informed
defense counsel that peremptory challenges could be used to "strike anybody they want to."
The ——s Supreme Court affirmed the trial court. Batson, 476 U.S. at 83-84.

416 The United States Supreme Court reversed the lower court's decision. The Court held
that purposeful racial discrimination by the government in the jury selection process was a
violation of the Equal Protection Clause of the Constitution. Batson, 476 U.S. at 89. The
Court set out a three-prong procedure to be used by the trial court when determining whether
such a violation had occurred. First, the defendant must make out a prima facie case of

. purposeful discrimination. Then, the state must provide race-neutral explanations for its

peremptory strikes. The trial court must then proceed to determine if the defendant has

established purposeful discrimination. Batson, 476 U.S. at 97-98.

417 The Supreme Court also set forth those factors necessary to establish a prima facie
case of purposeful discrimination: |) the defendant must show that he or she is a member
of a cognizable racial group; 2) the defendant must show that the prosecutor exercised
peremptory challenges to remove members of the defendant's race from the venire; and 3)
defendant must show that such facts and any other relevant circumstances raise an inference
that the prosecutor used the peremptory jury selection practice to exclude members of the
venire from the petit jury on account of their race. Batson, 476 U.S. at 96.

418 As indicated above, the standard of review to be applied by an appellate court to a
Batson challenge depends upon the issue being appealed. If the issue on appeal is a matter
of law, such as the timeliness in which a Batson challenge is made, the appellate court will
review the tal court's application of the law de novo. If the issue is a factual one, however,
e.g., whether a party has established a prima facie case for discrimination, an appellate court
wil] defer to the trial court's findings of fact unless clearly erroneous. Tolbert, 182 F.3d at
684. Therefore, it is imperative that the trial court fully develop a record for review - a
record that includes all relevant facts and information relied upon by the trial court to render
its decision, as well as a full explanation of the court's rationale. United States v. Diaz (11th
Cir. 1994), 26 F.3d 1533, 1994 U.S. App. LEXIS 19495.

919 Over the years since Batson was decided, the U.S. Supreme Court has expanded

Batson's scope and "reaffirmed repeatedly [its] commitment to jury selection procedures that

are fair and nondiscriminatory." J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 128,
114 S.Ct. 1419, 1421, 128 L.Ed.2d 89, 97. For instance, the Batson rule no longer applies
exclusively to prosecutors striking members of the venire who are the same race as the
defendant. Any racially-motivated reason for striking a prospective juror is prohibited under
Batson, whether the prospective juror shares the racial identity of the defendant or not.
Powers v. Ohio (1991), 499 U.S. 400, 409, 111 S.Ct. 1364, 1370, 113 L-Ed.2d 411, 424.
Moreover, the Batson challenge is no longer limited exclusively to the government in
criminal actions. It has been extended to prevent a defendant in a criminal action from using
peremptory challenges to exclude jurors based on race (Georgia v. McCollum (1992), 505
U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33), and has also been applied to private litigants in
a civil case. (Edmonson v. Leesville Concrete Co. (1991), 500 U.S. 614, 111 S.Ct. 2077, 114
L.Ed.2d 660).

420 In addition to their application to racially motivated peremptory challenges, the Batson
criteria have also been invoked to address other forms of discrimination in the jury selection
process. The U.S. Supreme Court has relied on Batson to prohibit gender discrimination
during jury selection. J.E.B., 511 U.S. 127. On appeal, Ford premises his challenge to the
State’s use of its peremptory challenges to strike six women from the venire, upon J.E.B. and
its progeny.

421 Ford argues that the State violated his Fourteenth Amendment rights by improperly

exercising all of its peremptory challenges to exclu’2 women from the jury panel. The State

responds that there was no discriminatory motive underlying its use of peremptory

challenges. and that there would be no reason to systematically exclude women from the jury
panel in a murder case involving a male defendant and a male victim. However, before we
even consider the merits of Ford’s claim, we must first evaluate the timeliness of the Batson
motion. While defendants have a right "to be tried by a jury whose members are selected
pursuant to nondiscriminatory criteria," Batson, 476 U.S. at 85-86, this right must be
exercised in a timely manner. Failure to raise a Batson challenge in a timely manner results
in the waiver of the challenge. Morning v. Zapata Protein (USA), Inc. (4th Cir. 1997), 128
F.3d 213.

922 When establishing the elements of a Batson challenge, the Batson Court did not
specify at what point in time in the proceedings an objection must be made in order to be
timely. As this is a case of first impression for this Court, we look to other courts for
guidance.

§23 Several jurisdictions have closely analyzed Batson's language and concluded that the
U.S. Supreme Court envisioned that a Batson challenge must be made before the jury is
sworn. State v. Wilson (1993), 117 N.M. 11, 868 P.2d 656; United States v. Cashwell (11th
Cir. 1992), 950 F.2d 699, 704; United States v. Dobynes (8th Cir. 1990), 905 F.2d 1192,
1196, cert. denied (1990), 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167. These courts note
that in Footnote 24 of the Batson opinion, the U.S. Supreme Court offered the following

alternative possibilities upon a finding of discrimination: the court may discharge the venire

10

and select a new jury from a panel not previously associated with the case, or it may disallow
the discriminatory challenges and resume selection, with the improperly challenged jurors
reinstated on the venire. Clearly, both of these options presuppose resolution of the objection
before a jury is sworn.

q2. Numerous courts have held that not only must a Batson challenge be issued before the
jury is sworn, but it must also be raised before the venire is dismissed. See United States v.
Biaggi (2d Cir. 1990), 909 F.2d 662, 679; Government of Virgin Islands v. Forte (3d Cir.
1986), 806 F.2d 73, 76; Morning, 128 F.3d at 216; United States v. Abou-Kassen (5th Cir.
1996), 78 F.3d 161, 167; United States v. Rodriquez (11th Cir. 1990), 917 F.2d 1286, 1288;
State v. Cummings (Mo. Ct. App. 1992), 838 S.W.2d 4, 6; Sorensen v. State, 2000 Wyo.
LEXIS 143, 6 P.3d 657, 662; State v. Harris (1988), 157 Ariz. 35, 36, 754 P.2d 1139, 1 140.
425 There are several reasons why a Batson challenge must be raised before the jury is
swor and the venire dismissed. The Wilson court, embracing the Cummings rationale,

stated:

There simply is no justification for defense counsel to wait until the remaining ~
venirepersons are discharged to challenge the state's peremptory strikes. If
defense counsel does wait until the venire panel is discharged and the
challenge is sustained, then the jury selection process must start anew, and an
additional venire panel must be called. This simply delays justice, and, in
those jurisdictions where an additional venire is not readily available, the delay
can be substantial.

Wilson, 117 N.M. at 15-16, quoting Cummings, 838 S.W.2d at 6.

426 Additionally, in Allen v. State (Tx. Ct. App. 1987), 726 S.W.2d 636, 1987 Tex. App.

ee ee ee nee ee ee ee

LEXIS 6672, the Texas Court of Appeals, citing United States v. Erwin (Sth Cir. 1986), 793
F.2d 656, explained that a Batson objection made before the venire is dismissed puts the
prosecutor on notice that he or she may be required to provide race-neutral explanations for
the peremptory strikes. With the venire still before the prosecutor, he or she has the
opportunity to associate the names and faces of the stricken veniremembers with the reasons
for striking them. This task becomes very difficult once the persons to whom the
peremptories were directed have disappeared from sight, especially where, as here, the
defendant challenges as many as six strikes.

927 Ifweallow a Batson challenge to be raised after the jury is impaneled and swom and
the venire dismissed, we not only impair the ability of the challenged attorney to effectively
defend his or her strikes, but we also deprive the district court of the ability to correct any
error in the proceedings in a timely fashion. While we have not previously addressed the
Batson challenge explicitly, the concept of requiring a substantive challenge to be brought
while the district court still has the opportunity to cure the alleged defect is not novel. We
have consistently held that the purpose of a timely objection is to give a district judge the first
opportunity to correct any error. | See State v. Tucker, 2000 MT 255, 301 Mont. 466, 10 P.3d
832; State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111; State v. Finley (1996), 276
Mont. 126, 915 P.2d 208 (overruled in part on other grounds by State v. Gallagher, 2001 MT
39, 304 Mont. 215, 19 P.3d 817); State v. Weinberger (1983), 204 Mont. 278, 665 P.2d 202.

428 We conclude that because Ford’s counsel waited until after the jury was impaneled

12

and sworn and the venire dismissed to raise his Batson challenge, his motion was untimely

429 The decision of the District Court is affirmed.

We Concur:

LA ONALLY

M .
=

Chief Justice

13

i
. CEIVELE
o nA 6 R RE

FEB Q 1 2002
IN THE SUPREME COURT OF THE STATE OF MONTA

= ENERALD urrivt
ATTORNEY Gene NTANA
No. 00-337 HELENA, MO
STATE OF MONTANA, =F —
i yETLED
Plaintiff and Respondent, )
) N 31 2002
v. ) dR D E R
) ed Smith -
EUGENE FORD, ) ~~ B8,GF thease A aa
)
Defendant and Appellant.

Eugene Ford, by counsel, has filed a Petition for Rehearing in this matter. The State
has responded, urging us to deny the petition. We agree with the State.

Ford's jury panel objection, made after the jury had been sworn and after the venire
had been dismissed, was not made in a timely manner. As noted in our Opinion, several
jurisdictions have concluded that the U.S. Supreme Court intended that a Batson chailenge
be made before the jury is sworn. Other jurisdictions have adopted the rule that such a
challenge may be raised after the jury is sworn but must be raised before the venire is
dismissed. Ford did neither.

Furthermore, as our Opinion reflects, there exists in this State a well-established body
of case law requiring substantive objections to be interposed while the district court still has
the opportunity to cure the alleged defect. Any challenge to the composition of the jury made
after dismissal of the venire deprives the district court of the ability to correct errors that may
be identified by such a challenge. Moreover, in addition to this well-established body of case

law, § 46-16-117, MCA, statutorily requires that all jury challenges must be interposed

before the jury is sworn. Ford failed to raise his objection until after the jury was sworm and
the venire dismissed, and he thus deprived the District Court of the opportunity to address
the alleged errors. Accordingly,

IT IS HEREBY ORDERED that the "Petition for Rehearing of Opinion" filed with
this Court by Defendant and Appellant, Eugene Ford is DENIED.

av
DATED this 3\ day of January, 2002.

Justices

Justice Jim Rice dissenting.

I respectfully dissent from the Court’s order. I would grant the petition and remand
for a hearing.

Although Ford argues that his objection should have been considered timely, I remain
convinced that the Court correctly held that a timely Batson challenge must be made before
the jury is sworn and the venire dismissed. Ford’s objection was made after the jury was
empaneled and the venire dismissed, and was, therefore, untimely.

However, Ford also argues that the State did not object to the timeliness of his jury
objection in the District Court, instead addressing the merits of the objection by offering
gender neutral reasons for its challenges, and thus waived any objection to the timeliness of
the claim. We have long held that failure to impose an objection at trial waives the ee for
purposes of appeal. State v. LaDue, 2001 MT 47, 304 Mont. 288, 20 P.3d 775.

Ford convincingly argues that this rule applies when the State does not object to the
timeliness of a Batson objection. As authority, he offers People v. Harris (Ill. 1989), 544
N.E.2d 357, a case in which the defendant challenged the State’s exercise of its peremptory
strikes. There, the prosecutor failed to object to the timeliness of the defendant’s motion, but
rather—like the situation here—opposed the motion on its factual merits. On appeal, the State
argued that the defendant’s motion had been untimely made. Citing the well-established rule,
the Illinois Supreme Court concluded that the State had waived its argument that the
defendant’s jury objection was untimely, as “it is equally true that the principle of waiver

applies to the State as well as to the defendant.” Harris, 544 N.E.2d at 378.

3

The State asserts that a waiver by the prosecutor requires understanding about what
kind of objection defendant’s counsel was actually making, and that it was not until appeal
that Ford actually labeled his objection a Batson challenge, as opposed to a duties to the
sufficiency of the venire panel pursuant to Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct.
664, 58 L.Ed.2d 579. I am convinced from the record that Ford’s objection was directed to
the propriety of the prosecutor’s peremptory challenges, and that the prosecutor sion
understood the objection, to which he responded by offering nondiscriminatory reasons for
his strikes.

The District Court failed to properly follow the process for evaluating Ford’s
objection as set forth in Batson, and failed to enter findings regarding the sufficiency of the
prosecutor’s gender-neutral explanations. I would remand this matter to the District Court
to conduct a proper Batson hearing, with the further admonishment that the trial court need
not accept at face value the State’s ostensibly facially-neutral explanations for use of its
peremptory challenges, but must consider whether the proffered reasons are designed to

avoid admitting acts of discrimination. See, David v. State (Ala. 1998), 740 S.2d 1142.

Justice

Justice W. William Leaphart joins in the foregoing dissent of Justice Rice.

Justice

‘

| It.
ms 09g, RECEIVED

DEC 2 8 2001
IN THE SUPREME COURT OF THE STATE OF MONTANA st
ATTORNEY GrNenAcs UFFICE
No. 00-337 re ei " “ ae

STATE OF MONTANA, DEC 2 » 2u01

Ed &
~LE RK CS ~ Smif 4

oer) o °
o AF aeas, +f : ve,

Plaintiff and Respondent,

ORDER

V.

EUGENE FCRD,

Defendant and Appellant.

Eugene Ford, by counsel, has filed a Petition for Rehearing in this matter. The State
has responded, urging us to deny the petition.

We deem it appropriate to permit Ford to file a reply brief in response to the
arguments raised in the State’s Response to the Petition for Rehearing. Although Ford may
address any of the State’s arguments, we invite Ford to address, in particular, the State’s
argument that the provisions of § 46-16-117, MCA, require that all challenges to the
composition of the jury panel must be interposed before the jury is sworn. Accordingly,

IT IS HEREBY ORDERED that Ford shall be entitled, at his discretion, tofileareply - —
brief addressed to the arguments raised by the State of Montana in its response to the petition
for rehearing, said brief not to exceed ten pages, to be filed on or before January 15, 2002.

IT IS FURTHER ORDERED that the Clerk of this Court shall give notice of this

Order by mail to all counsel of record.

“‘~
DATED this 2»,' day of December, 2001.

Justices

No. 01-10070 ORIGINAL

In The

SUPREME COURT OF THE UNITED STATES

+
EUGENE FORD,
Petitioner,
V.
STATE OF MONTANA,
Respondent.
+
AFFIDAVIT OF SERVICE
STATE OF MONTANA )
County of Lewis and Clark “a

I, Bonnie R. Flesch, of legal age, being duly sworn according to law, upon my oath
depose and say:

a I am a legal assistant in the Office of Attorney General, Department of

Justice, State of Montana. RECEIVED

SEP 23 02

OFFICE OF THE CLERK
SUPREME COURT, U.S.

2. On Thursday, September 19, 2002, at the direction of Mark W. Mattioli,
Assistant Attorney General, I served one (1) copy of the Brief in Opposition to Petition
for Writ of Certiorari in the above matter upon Petitioner by placing the document in the
U.S. Mail, first-class postage prepaid, addressed as follows:

Mr. William F. Hooks

Ms. Kristiina Guest

Montana Appellate Defender Office
34 West Sixth Avenue

P.O. Box 200145

Helena, MT 59620-0145 -

a On this date I also placed in the U.S. Mail, first-class postage prepaid, the
original and ten (10) copies of the Brief in Opposition to Petition for Writ of Certiorari

addressed to the Clerk of the United States Supreme Court.

DATED: 24 oa Caen LE 220 02 yaa PAN SPTD

SUBSCRIBED AND SWORN io before me this_/ 9 +h day of

S cele ~~ v , 2002.
Sat G. Murs

Jan¢t E. Meyers ( |
Public for the of Montana

Residing in Heleua. Montana
My Commission expires Se ote who Ia, 200 f

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0021%3A2. Public record. Not legal advice.