Judge denies Fuel Fitness shooter's request for new trial

An effort to secure a new trial for convicted killer Jonathan Douglas Shaw was denied by Flathead County District Court Judge Dan Wilson on Thursday.

A jury in July found Shaw guilty of deliberate homicide and attempted deliberate homicide in connection to the deadly 2021 Fuel Fitness parking lot shootout in Kalispell. Alleging Clerk of District Court Peg Allison deviated from state law in drawing a jury, Shaw’s defense attorneys filed a motion in September seeking the reversal of his conviction and a new trial.

In it, Missoula-based attorneys Colin Stephens and Paul Simon argued that Allison omitted potential jurors who failed to respond to an initial mailed notice from the eventual jury pool. The two contended she also failed to direct the Flathead County Sheriff’s Office to attempt to track down unresponsive potential jurors as required by state law. 

In a supplemental brief filed following an Oct. 25 evidentiary hearing, Stephens and Simon reiterated their position that a structural error occurred in the run-up to Shaw’s trial, entitling him to a new trial. Additionally, they argued that Shaw was prejudiced as Allison “summarily eliminated” those jurors who failed to respond to the mailed notice. 

The eventual jury, the pair argued, emerged from a pool of people who self-selected to participate. 

“A trial jury cannot be made up of just those people who ‘want’ to serve,” they wrote. “It must be a cross-section of the citizenry, including those burdened by the effort.”

Prosecutors, meanwhile, argued that the district court clerk substantially complied with the procedure, Shaw’s attorneys missed the window to request a new trial and passed up on their opportunity to object to the jury selection process. 

“[Shaw] participated in the selection of the jury, examined the jury, passed the jury for cause and informed the court of no error in the jury selection process,” wrote Deputy County Attorney John Donovan in the original response to Shaw’s motion for a new trial. 

THOUGH WILSON ultimately rejected the motion, he disagreed with prosecutors’ assertion that Shaw missed his chances to challenge the jury selection process or seek a new jury trial. 

“Because there has been no showing that the defendant or defense counsel had knowledge or a means of knowledge of the alleged irregularity in the manner in which the jury was drawn for his trial prior to Sept. 1, 2023 … the defendant may raise his objection in his motion and the court may determine the motion, even though it was untimely under [state law],” Wilson wrote. 

As to whether Shaw failed to receive an impartial jury drawn from a cross-section of the community owing to the clerk’s allegedly erroneous actions, Wilson referred to testimony Allison gave on Oct. 25, detailing the challenges of locating every individual who fails to respond to the initial mailed notification of their status as a potential juror.

Allison testified in October that she starts each jury term with 7,000 names provided by the state. Each receives a mailer notifying them of their status and requesting they fill out a questionnaire, she said. It is difficult to know if unresponsive potential jurors are ignoring the notification, never received it or have since moved from the mailing address. 

Although Allison said she had drawn up a list of unresponsive residents in the past and turned it over to the Flathead County Sheriff’s Office for personal service, she often met with resistance. Previous sheriffs had told her that their deputies were too busy to chase down unresponsive prospective jurors, Allison testified.

Ahead of Shaw’s jury term, Allison said she struck unresponsive residents from the pool and never asked the Sheriff’s Office to try and find them. 

Wilson noted that while state statute requires reasonable efforts be made to track down unresponsive prospective jurors, it does not define what constitutes reasonable. 

It similarly omits mention of what action authorities could take to compel a resident to respond to the clerk’s notification. That portion of state statute outlined “a process which is more aspirational than dictatorial and more hyperbolic than direct and plain,” Wilson wrote. 

“... The intent of the statute, overall, is to provide a mechanism for ensuring a sufficient number of jurors for any particular case rather than to ensure, strictly, that every person who potentially may serve during a jury term, in fact, makes himself or herself available for service,” Wilson concluded. 

He noted that the Legislature repealed in 1999 an earlier version of that statute that directed sheriffs to track down unresponsive residents and require them to respond to the clerk’s notification. Wilson pointed out that the Legislature never provided penalties or sanctions for uncooperative individuals in either the current or repealed version of the statute. 

Wilson saw no evidence that the alleged deviation from state statute affected the subsequent creation of a random and impartial jury pool. 

“Consequently, a failure by the clerk or the sheriff to comply strictly with the provisions in [the statute] … does not undermine or materially affect the random nature or objectivity of the jury selection process, nor has anything been shown in the process undertaken to summon and select a jury in this case to have had any impact on the formation of the trial jury selected from a fair cross-section of the community,” Wilson wrote. 

WILSON RETURNED to a point he made during the October evidentiary hearing, that the list of names the state pulls from to provide the district court with jurors contains over 30,000 more residents than people living in Flathead County per Census data. 

And that’s before removing all residents under the age of 18 and unable to serve on a jury, Wilson wrote. He put the total population of eligible jurors in the county at an estimated 87,774. The state’s list includes 142,472 names, Wilson wrote. 

“In a trial term list of 7,000 names, approximately 2,660 (38%) of those names will not correspond to persons who actually reside or exist within the adult population of Flathead County,” he concluded.

That presents the Sheriff’s Office with an “impossible task,” Wilson wrote, if the statute required them to track down every unresponsive prospective juror. He pointed to testimony from Undersheriff Nic Salois in October that indicated deputies charged with locating potential jurors were successful in about one in every 10 attempts.

“Montana has long recognized that the law does not require futile acts or gestures,” Wilson wrote. “Interpreting and applying the provisions of [the statute] to require the sheriff to track down such an enormous and substantial number of phantom jurors before a determination could be made that there is substantial compliance with the provisions of the statute would amount, perhaps, to the most absurd and contorted exercise in elevating form over substance that a reasonable person could possibly require.”

If Allison ran afoul of the statute, Wilson ruled, it was a technical violation, meaning Shaw would still need to show prejudice. Without that, it “amounts to merely a harmless error,” he wrote. 

“[Shaw] has not and cannot show that the clerk’s deficiency in not reporting or certifying to the [Sheriff’s Office] the names of those persons who did not provide a response to their jury notice and, consequently, the [Sheriff’s Office’s] deficiency in not making efforts to personally serve and ‘make reasonable efforts’ to require such persons to respond to the notice was anything but harmless error, and he has not shown that he was prejudiced by the same,” Wilson wrote.