Montana Supreme Court reverses conviction of former Valley County deputy

A former Valley County sheriff’s deputy who was convicted for possession of child pornography and sexual intercourse without consent of a minor has had one of his convictions overturned and sent back to district court because of Constitutional violations associated with his conviction.

In a split 4-to-2 decision, the Montana Supreme Court said that because Luke Strommen was denied the right to cross-examine a witness face-to-face, a move that violated his state and federal constitutional rights, the case should head back to District Court Judge John W. Larson on the charge of sexual intercourse with a minor without consent.

The Supreme Court reversed the verdict and remanded it, or handed it back, for a new trial on April 30.

At the close of a five-day trial in Glasgow in 2020, the jury returned a guilty verdict and Strommen was sentenced to 40 years in prison.

The case focuses on a sexual assault behavioral psychologist, Dr. Sheri Vanino, and the prosecuting attorney’s decision to request she appear remotely via two-way video conferencing, for example, using Zoom.

When the case was originally planned, Vanino’s testimony would have been scheduled sometime during the winter. Because she was a practicing therapist in Denver, meeting with sexual assault survivors, she had at least one group that met weekly that potentially could have conflicted with trial. Larson agreed to let her testify via video conferencing, over the objections of Strommen’s attorney.

As the case proceeded to trial, Montana courts, along with nearly every other institution in America, were affected by the COVID-19 public health emergency and restrictions to protect the public.

Larson determined that Montana’s narrow exception to a constitutional right to confront accusers face-to-face fit the situation because Vanino had an obligation to her patients, and the travel could jeopardize that.

However, when the prosecution called Vanino, she appeared via video conference from a residence in Massachusetts, not from Denver. When asked about the appearance, she replied that the group sessions had been cancelled due to COVID.

While Strommen’s attorney argued for a mistrial because of his state and federal constitutional rights, Larson overruled the motion, citing COVID as a reasonable excuse not to travel.

The Montana Supreme Court, in a decision authored by Justice Dirk Sandefur, said that the reason for excusing Vanino didn’t exist, and her excuse to remain in Denver was invalidated because she traveled freely to Massachusetts.

Vanino appeared via video testimony on July 13, 2020, and previously, during the pretrial hearings, the issue of COVID never came up with regard to her appearance.

The Valley County District Court record also shows that the “audio-video transmission lagged and faded-out during her direct examination, thus preventing the courtroom audience from ‘picking up everything she was saying.’”

That problem persisted the next day as well during her testimony, court records said.

“Under the Sixth Amendment and the Montana Constitution Article II, Section 24, the right to confront and cross-examine adverse witnesses personally face-to-face generally applies to all ‘testimonial’ statements offered as evidence to a criminally accused at trial,” the Montana Supreme Court said.

The Supreme Court said that the judge had to find that the personal presence of a witness is “impossible or impracticable to secure due to ‘extraordinary distance, expense or health “considerations.”’”

“Mere judicial economy or a generalized assertion, showing, or finding of significant travel burden or logistical expense or inconvenience is generally insufficient alone to constitute an important public policy justification for dispensing with actual face-to-face confrontation,” the opinion said.

The justices also found that the prosecution had failed to make a good-faith effort to get Vanino to testify in person, and was not aware of her location prior to the trial.

“On appeal, the state now relies solely on its assertion that Dr. Vanino’s remote video testimony was justified in furtherance of ‘public health’ and to protect courtroom staff and trial participants from the risk of COVID-19 exposure,” the opinion said. “The problem is, however, the state made no such assertion on any of the multiple occasions on which the issue arose.”

Instead, Sandefur’s opinion points out that the prosecutor had wanted Vanino’s testimony immediately before the victim in the trial because of a “tactical preference.”

“The resulting district court justifications were then based in part on the state’s insufficient justifications, and the court’s own sua sponte interjection of expert witness convenience considerations and only generalized COVID-19 concerns,” the opinion said. “The state’s assertion, for the first time on appeal, that Dr. Vanino’s contemplated testimony was non-essential or of little import to the state’s case is strikingly inconsistent with its assertions.”

Montana Supreme Court Justice Beth Baker wrote a dissenting opinion in the case, saying that allowing Vanino to participate remotely did not constitute a “reversible error” and so she would have let the conviction stand.

Chief Justice Mike McGrath joined Baker in her dissent. Justice Jim Rice did not participate in the case.