The local criminal justice apparatus has not remained immune from the coronavirus.
“Without the courts properly functioning, society can begin to drift into disorder and chaos.”
Montana Supreme Court Chief Justice Mike McGrath wrote those words in a March 13 letter to state judges and court clerks as it was becoming apparent the wheels of justice would be confronted with their own rough road. At the time, Montana had no cases of COVID-19, the respiratory illness caused by the new coronavirus.
McGrath outlined several precautions courts across the state needed to implement as part of an effort to balance justice and public health during a unique worldwide crisis. There was nothing in that letter about how judges should review their jail rosters and release as many prisoners as they could, “especially those being held for nonviolent offenses.”
That came in a letter seven days later.
A lot has changed since McGrath wrote that first letter. As of Friday afternoon, there were 108 confirmed cases of COVID-19 in Montana. That number may be higher by the time you read this. On Wednesday, the first infected person was confirmed in Hill County. And on Thursday, Montana recorded its first COVID-19-related death.
More concerning, there are now more people known to have COVID-19 in the U.S. than in China, where the disease originated. While some question the reliability of the information provided by the communist Chinese government, which recently kicked out American journalists, the number of U.S. cases speak for themselves.
COVID-19 has affected the justice system in Hill County just as it has all across the country.
Visibly obvious are the locked doors of the Hill County Courthouse and the signs advising people to “STOP” and not to enter if they’re ill. Essentially, every activity in the courthouse has been significantly reduced to minimize human interaction while maintaining just enough services to keep society functioning.
As far as court functions, nonessential hearings have been postponed, litigants and attorneys who feel sick have been told to stay home, and the courts are operating with skeleton crews. And starting Monday, people can go into the courthouse only by appointment and only for essential business concerns, including appearing in Justice and District courts.
Threat Of Disease A Factor In Two Inmates’ Release
COVID-19 also has influenced the lives of two people who began the week in Hill County Detention Center and were out of it before the weekend.
One of those inmates, though, ended up in another jail.
On March 20, McGrath issued a directive advising judges of limited jurisdiction to review their local jail rosters and release as many inmates as possible, emphasizing especially those being held for non-violent offenses. The point of the directive was safety for inmates, facility employees, and defense attorneys, McGrath said in his letter.
While the letter addressed courts of limited jurisdiction, meaning those judges handling misdemeanor cases, there is at least one former inmate, a convicted felon, who was released from the detention center because of COVID-19.
Darrell David Gardipee III was convicted of leading police on a chase through Havre on Nov. 22, 2017. Court documents say that before the pursuit began, Gardipee nearly hit a small child who was sitting on the side of the road.
Darrell David Gardipee III
Gardipee ended up crashing into an embankment and taking off on foot. Officers later found him hiding under a trailer. He told officers he had recently used methamphetamine.
Gardipee eventually pleaded guilty to three of the seven charges he accrued from the incident. On Feb. 13, 2019, Tenth Judicial District Judge Jon Oldenburg handed down a three-year deferred sentence for felony criminal endangerment. Gardipee also received suspended jail sentences for two misdemeanor offenses, criminal mischief and driving while under the influence of alcohol or drugs.
During his probationary period, he allegedly did the same thing again — twice. Court documents say Gardipee led Rocky Boy police on a high-speed pursuit on Oct. 25 and again on Nov. 24.
His probation in Hill County was revoked, his case was reopened, and he was thrown back in the detention center Nov. 28.
On Monday, Stephanie McKnight, Gardipee’s public defender, asked that her client be released with conditions. Hill County Attorney Karen Alley did not object.
“Due to the nature of county jails, persons held in the custody are uniquely susceptible to becoming sick during outbreaks such as COVID-19,” McKnight wrote in her motion to have Gardipee released.
On Tuesday, Oldenburg, not a judge of limited jurisdiction, granted the request, and Gardipee was released from the detention center — only to be picked up and taken to the Rocky Boy Adult Detention Center, where he was being held as of Thursday.
What happens to Gardipee next is up to the Rocky Boy tribal justice system.
Hill County Justice of the Peace Audrey Barger, a limited-jurisdiction court judge, also took COVID-19 into consideration this week with a detention center inmate.
Desmond Thomas Ferguson was arrested Sunday. He is accused of trying to run his ex-wife off the road, taking his vehicle from a repair shop without paying the repair bill, and resisting arrest.
On Monday, Barger held a hearing with Ferguson, who was being held in the detention center, via video. She spent a great deal of time chiding him.
“I can’t have you going out hurting people, stealing and giving officers a hard time,” Barger said to Ferguson. “It makes me unhappy when you try to elude arrest. … That’s juvenile.” She then asked Ferguson how old he was. He was 26, he replied, proving her point that he shouldn’t behave like a juvenile.
Ferguson, who also has a history of not showing up to court, apologized to the judge for his absences, adding that he didn’t know “how this stuff works.” He said he was new to these types of circumstances, prompting a rebuke from the judge that Ferguson was not speaking the truth. He was not new to trouble and its correlating orders to show up before a judge, she reminded him.
“Under normal circumstances,” Barger told Ferguson, “I’d let you sit in jail. … This is dangerous behavior.”
But Barger decided to release Ferguson. Among the conditions she imposed: He has a curfew, he has to work or go to school, and he can’t have contact with certain people.
“Thank you so much,” Ferguson repeatedly told the judge.
Photo of judges’ release criteriia
The threat of COVID-19 and McGrath’s directive were only part of the considerations in her decision. She provided a long list of factors she considers when it comes to releasing inmates.
The judge provided some background on her decision:
“Offenders have constitutional rights, including the presumption of innocence until proven guilty and the right to be released on reasonable bail before conviction. Chief Justice McGrath’s letter suggests that Judges consider releasing persons from custody who are charged with misdemeanor non-violent offenses. This consideration is now one factor looked at for these types of offenses in addition to all the other statutory requirements we already consider when setting a bond amount (or allowing a release without bail) and when setting appropriate release conditions.” Barger said in an email.
“These are difficult and uncertain times for the entire world,” Barger wrote. “The members of the judiciary are still working, using their discretion in considering each offender’s release on an individual basis. We have and will continue to balance the need to protect the community with an offender’s rights to pre-trial release.”
Local Jail Population Mostly Unchanged
Hill County Detention Center still houses most of the inmates who were there when the week began. Throughout the week, local police officers and deputies arrested multiple suspects. Some have bonded out, others were transported or picked up by other jurisdictions, and others are still in.
As of Friday, there were 22 inmates in the detention center. On Monday, there were 31.
Meanwhile, while Montana’s Department of Corrections system also has changed protocol in hopes of averting a COVID-19 outbreak in its correctional facilities, it is not as of now releasing convicted criminals.
“At this time, releasing offenders in our custody outside the existing legal remedies is not an action we are taking,” DOC Communications Director Carolynn Bright said in a prepared statement. “The health and safety of our staff, inmates, and the public are always the top priorities of the DOC, and we are taking numerous measures to mitigate the risk posed by COVID-19 in the community and in our secure facilities.”
As the pandemic continues to evolve, Bright said, so will the DOC’s work to mitigate the risk of COVID-19.
Write to Paul Dragu at [email protected]
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