Letter to the editor from county attorney
Richland County Law & Justice Center
200 12 th Avenue N.W., Ste #7
Sidney, Montana 59270
(406)433-2505 – FAX (406)433-9989
August 16, 2019
Mrs. Amy Venn Efta, Editor
310 2nd Avenue NE
Sidney, MT 59270
Re: Roselles records request
Dear Mrs. Efta,
I read the Sidney Herald article “Policing the Police: Part 2” in which you state I am wrong about the law. As I stated when I called you, the city never informed me a request was made by the Sidney Herald to view Mr. Roselles’ internal investigation records. It was no until law enforcement stated they were sending Mr. Roselles’ internal investigation records to the City’s civil attorney, Thomas Kalil, that I was made aware of this request. As you have been made aware, a criminal case is currently pending against Mr. Roselles. Our office prosecutes City of Sidney misdemeanor cases, as well as all felonies in Richland County.
As we discussed, I was very concerned about the 5th and 14th amendment issues regarding the release of that information and the prosecution getting access to said information. To be clear, I have not seen the file and have no right to access Mr. Roselles’ internal investigation file at this time.
To explain, the 5th amendment to the U.S. Constitution provides that the accused has a right against self-incrimination. Law enforcement knows this well, as that is why we have Miranda warnings and it is one of the biggest warnings included in the Miranda rights. During an interview into criminal activity by a government employee, depending on the type of matter, they are advised of something called the Garrity notice. The statute I provided to you previously, covers that and other situations outside a
Garrity notice. In essence per Garrity, when a government employee is suspected of committing a criminal offense, the employer needs to investigate. As part of that investigation, they will interview the government employee and give them a Garrity notice stating the information provided cannot be used against them in a criminal prosecution. This is because they are essentially being coerced to provide the information or risk punishment or termination with no 5th amendment or 14th amendment rights. It makes sense as we, the public, want them to be honest with their employer and if not, punished or terminated. They may still refuse to speak, but as all citizens, they are allowed then their constitutional rights and the potential consequences of their employment if they choose not to speak.
In the present situation, I recently learned that Mr. Roselles was given the Garrity notice. I haven’t seen that notice, but presume it’s the standard notice given to all employees. I did not know this until the last few days. I was also never advised that the city would be releasing these records to the Herald until late last week. No one advised me that this was going on or thought to check that this may affect the prosecution of Mr. Roselles’ current charges. I made a call to the Herald editor and followed up with an email stating that I was not denying release of records, just that the release of records at this time would possibly affect the prosecution of the matter. I believe that was misconstrued in your article.
I hope, Mrs. Efta, you read Garrity v. N.J. , 385 U.S. 493; 87 S. Ct. 616; 17 L. Ed. 2d 562; 1967 U.S. LEXIS 2882 . See, the difference between the cases your attorney cited and this matter, is there was no pending investigation or prosecution happening or contemplated that the release of the records could affect. Additionally, the Bozeman Chronicle wasn’t seeking Garrity material. Release of Garrity materials could subject the city to a lawsuit by Mr. Roselles, and demand a complete dismissal of the criminal case. In Garrity, the release of the records resulted in the overturning of the convictions of the officers. Simply put, I asked for the records not to be released, not because I was protecting law enforcement, but because I was protecting the prosecution of an officer. While I am not the civil legal counsel for the city, as a citizen and taxpayer, I was also protecting my city from liability as well. I could have said nothing, let the records be released, and then watch the case be dismissed under Garrity, or have the county also subjected to civil liability if I pursued it.
Additionally, I note that there are factual errors in your article. I advised the Herald I was not the prosecutor on Mr. Roselles’ case before your article was published. The records were not mine to release, but the city’s, as I do not have them. I have not seen the case file. Moreover, I do know that in the public record documents, it was never stated that Mr. Roselles was drunk. There may be liability for the Herald for that as well.
The problem with articles like these is that they divide a community and fuel conspiracy theories. It causes issues with seating an impartial jury, resulting in changes in venue and additional costs to the city and county. It also takes time away from other matters that my office (and other offices) needs to focus on. I too believe in transparency, which is why I’m providing this follow up letter. I wish that I had been notified of the records request sooner and could have had the time to give the above legal information to all parties without these damaging articles. I have advised Mrs. Efta on numerous occasions to contact me with legal questions about matters. I have also advised her that I cannot ethically use the process to prosecute my cases, but can give her general information on how the process works and where to find public information she’s seeking. She has my cell phone number and access to me for any questions.
Back to transparency, there were Facebook comments to the Herald’s article regarding Mrs. Efta’s assault case. To clarify, she was prosecuted. Additionally, Mrs. Efta was not initially cited, just like Mr. Roselles, as there was further investigation that apparently law enforcement needed to do. As a result, like Mr. Roselles, her case was forwarded to the County Attorney’s Office as a request for prosecution. It was later prosecuted, and now that the case is finished, her records, as they are not Garrity records, can be requested per Montana law.
Finally, again, my office is busy. We had four attorney before I took office in January. We now have two. As many of you know, we are prosecuting two homicides and numerous serious sexual assaults. The caseload has not diminished, but in an effort to make sure I am able to hire another good deputy county attorney and to save the taxpayers money, I have waited on hiring anyone for the time being. In the meantime, my office staff, and the agencies I work with have gone out of their way to help us be successful. In this matter, our office did not get the case file until around three months after the incident. This is typical as when investigations are pending as law enforcement is waiting on records from private agencies, which takes time. They want to do a thorough investigation. When we did receive it, we were in the midst of one homicide. By the time we were able to file the case, we had two homicides. Every case is important, but we do have to prioritize some things, like everyone does in their life and jobs.
I hope this letter clarifies some of the questions the public has, and I hope it gets published in its entirety. I hope that Mrs. Efta wills imply pick up the phone and talk to me if she has questions regarding what we do.
RICHLAND COUNTY ATTORNEY
Cc: Peter Michael Meloy, Attorney for Sidney Herald
Thomas Kalil, Sidney Civil Attorney
Rick Norby, Sidney Mayor
Chief DiFonzo, Sidney Police Department