Montana high court sends case back to local court

Due to repeated references to her sexual preference during a previous trial, a Flathead County probation and parole officer convicted of making a false 911 call could get a new trial.

In a 4-3 decision released Thursday, the Supreme Court sent the case of Molly Miller back to Flathead County District Court.

It is up to the prosecution to decide whether to pursue the matter, according to attorney and Kalispell Mayor Tammi Fisher, who represented Miller in her high court appeal.

According to court documents, Miller, of Kalispell was convicted of obstructing a peace officer, a misdemeanor, after she lied to a Kalispell Police dispatcher about the whereabouts of her longtime partner, fearing the woman would lose her job if officers performed a previously requested “welfare check” on her.

Miller, her partner Jennifer Benware and Benware’s friend and co-worker Amanda Dumke were drinking at a Kalispell bar on Feb. 9, 2008, when Benware threw a beer bottle at Miller and was kicked out. Miller and Dumke remained at the bar.

After calling Benware, Dumke became concerned about her and asked Kalispell Police to check on her.

However, when Dumke told Miller she had called police, Miller, fearing Benware might lose her job at the Flathead County Sheriff’s Office Animal Control Unit, called Kalispell Police and told the dispatcher that Dumke’s call had been a prank and Benware was with them at the bar.

Meanwhile, an intoxicated Benware had been involved in an automobile accident so she was not home when officers arrived to check on her.

Miller was found guilty during a June 2008 jury trial in Kalispell Municipal Court.

She appealed to Flathead District Court, arguing that Municipal Court erroneously allowed multiple references to her homosexuality and Benware’s automobile accident. She claimed that such evidence was irrelevant and prejudicial.

In April 2009 the District Court upheld the original verdict.

Miller had suggested to the Municipal Court during pretrial discussions that the relationship between Miller and Benware be characterized as “close” to the jury.

The city, however, argued that characterizing the women’s relationship as anything other than what it was would mislead the jury because the knowledge that the women were intimate partners put both Benware’s and Miller’s conduct during that evening in context.

However, the Supreme Court concluded that “[b]ecause there remains strong potential that a juror will be prejudiced against a homosexual or bisexual individual, courts must safeguard against such potential prejudice” and reversed the lower courts.

The Supreme Court did agree that the evidence of Benware’s accident should be admissible since it was “reasonable to conclude from that call that Miller intended to mislead officers as to Benware’s location and to prevent the officers from investigating Benware’s whereabouts and condition.”

The Supreme Court majority also agreed with the local courts on allowing Benware to be treated as “a witness identified with an adverse party,” since she was in a relationship with Miller.

Dissenting justices argued that “[t]he State’s allegedly prejudicial remarks emphasized the intimate nature of the relationship between Miller and Benware in order to demonstrate that Miller had a motive to make the call in order to protect Benware” and that the state focused on the length and intimacy of the relationship and not its same-sex nature.

Miller’s attorney questioned the jury exhaustively about same sex relationships and the potential for prejudice against a lesbian defendant and failed to unearth any prejudice, according to Justice Brian Morris.

But Fisher disagreed.

“The prejudicial effect was clear,” said Fisher, who said the prosecution made Miller’s sexuality an issue by mentioning it 13 times during the initial trial. “I don’t mention people in heterosexual relationships that often,” she said.

She said she was pleased the Supreme Court followed a precedent set forth in State v. Ford, which states that sexual orientation unrelated to the elements of the crime is irrelevant.

Because of the clear precedent, “it’s a travesty of justice this had to go to the Supreme Court,” said Fisher, who said Miller has lived with a wrongful conviction that cost Miller her job and has affected her well-being.

Reporter Melissa Weaver may be reached at 758-4441 or by e-mail at mweaver@dailyinterlake.com