Month: March 2017

Man charged in DUI death settles lawsuit with state for $100,000

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By Whitney Bermes, Bozeman Daily Chronicle, March 23, 2017

A man accused of killing his wife in a 2012 drunk driving crash near Bozeman — but whose charge was later dismissed — will receive $100,000 after settling a lawsuit with the state over what his attorney called “outrageous conduct” by investigators and prosecutors.

The settlement approved by a Gallatin County judge this week awards 44-year-old Michael Soule $100,000 from the state.

The settlement is not considered an admission of liability, documents say.

Soule’s attorney, Todd Shea, filed the suit in July, alleging negligence, malicious prosecution, violation of constitutional rights, and intentional and negligent infliction of emotional distress, among others, stemming from the investigation and prosecution of the crash that killed his 37-year-old wife Jennifer Soule.

Defendants named in the suit included the Montana Highway Patrol, Attorney General Tim Fox, Gallatin County Attorney Marty Lambert, former Gallatin County Chief Deputy Attorney Todd Whipple and MHP troopers Josh Brown, Glen Barcus, Josh Giddings, Patrick McCarthy and Ace Meskimen.

Soule was charged with felony vehicular homicide while under the influence months after Jennifer’s death in a crash on Interstate 90 west of Bozeman during the early morning hours of Jan. 25, 2012.

The case was later dismissed after former Gallatin County District Court Judge Mike Salvagni ruled that investigators failed to preserve key evidence and that the prosecution didn’t have probable cause to charge Soule with his wife’s death.

Charging documents alleged that Soule was driving a pickup up to 103 mph with a blood-alcohol content of 0.231, nearly three times the legal limit, when the vehicle crashed into a guardrail. Documents also claimed that Soule had marijuana and cocaine in his system at the time.

Soule pleaded no contest to the charge as part of a plea deal that gave him 10 years of probation and no prison time.

However, Salvagni rejected the agreement, and Soule then withdrew his plea and pleaded not guilty.

But following a flurry of motions by Soule’s defense attorney, Al Avignone, as well as testimony from troopers who investigated the crash, Salvagni dismissed the case.
In his ruling, Salvagni said that the highway patrol failed to preserve evidence, which included a long, brown hair consistent with Jennifer’s that was photographed near the driver’s door, as well as multiple recordings of witness interviews at the scene of the crash and a swab of DNA evidence taken from the driver’s side dashboard. That evidence was exculpatory and could have been used by Soule to rebut prosecutors’ theory that he was driving and that Jennifer was ejected from the sunroof in the crash.

In addition, Salvagni ruled that the affidavit of probable cause filed by Whipple contained a number of omissions, which included:

Jennifer’s DNA and Soule’s DNA were both found on the driver’s side airbag, but only Soule’s was found on the passenger side airbag.

A long, brown hair consistent with Jennifer’s hair was found on the driver’s door.

There were no fingerprints recovered from the keys or steering wheel that could have indicated who was driving.

No witnesses could identify who was driving.

Neither person was wearing a seat belt.

Both were found outside the vehicle.

Salvagni’s ruling also said that investigating troopers conducted a number of warrantless searches and seizures in Soule’s hospital room the morning of the crash.

Troopers went into the trauma room where Soule was unconscious and obtained health care information, removed his hospital gown and sheet, examined his body and took photographs of his injuries and personal items, all without permission from Soule’s family or hospital staff.

And while a screening test of Soule’s urine at the hospital tested positive for marijuana and cocaine, a confirmation test was never done, and his blood was never tested for the two drugs. The only legal blood draw tested by the Montana State Crime Lab showed Soule’s BAC was 0.07, under the legal limit for driving, and the amount of marijuana in his system was below the legal limit for medical marijuana cardholders, which Soule was.

Shea declined to comment on the settlement. A call for comment to a spokesperson with the Montana Attorney General’s Office was not returned.

Gallatin County ordered to pay more than $125,000 to wrongfully fired deputy

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By Whitney Bermes, Bozeman Daily Chronicle, March 21, 2017

A District Court judge has ordered that Gallatin County pay more than $125,000 for lost wages and benefits to a deputy wrongfully fired by the sheriff in 2014.

In a judgment issued Friday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that Gallatin County must award David Johnston $125,786 for lost wages and benefits from his July 23, 2014, firing through December of last year.

And the county was also ordered to pay about $3,450 for costs incurred as part of the case.

In addition, Johnston will receive interest payments as well as a $247 per diem payment that he will receive until he is reinstated in the Gallatin County Sheriff’s Office or when the case is settled otherwise.

Johnston has yet to be reinstated.

Johnston sued the county following his firing. The case went to trial for three days in December 2015 before Gilbert, who later ruled in favor of Johnston and ordered that he be reinstated as a deputy and receive damages.

In the more than a year since Gilbert ruled in favor of Johnston, attorneys have battled over how much money Johnston was due.

Johnston’s attorney Todd Shea argued for more than $125,000 for back pay and benefits. But Gallatin County’s attorney Calvin Stacey argued that Johnston was only entitled to about $38,520 before taxes.

Since Johnston’s firing, he has received unemployment benefits and has been employed. By allowing Johnston to be reinstated and receive backpay from when he was fired, all while having earned money in that time frame, would be an “obvious windfall” for the deputy, Stacey argued.

Gilbert issued her final judgment Friday, agreeing with Shea’s proposed judgement.
Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder when Gallatin County Sheriff Brian Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Gootkin’s office asked Johnston to turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio. Later that month, following a disciplinary hearing, Johnston was fired.

During the trial, Gootkin testified that the recorder was county property and needed to be returned as soon as possible but that Johnston refused to comply with Gootkin’s order.

Shea, on the other hand, argued that Johnston’s firing was “cooked up” by the sheriff’s office command staff to get rid of Johnston, a 10-year department veteran who had prior bad incidents with Munter following their breakup.