Source: Montana Law Week

Michael Soule, 44, was charged with vehicular homicide while DUI following the death of his wife Jennifer, 37, in a crash on I-90 west of Bozeman 1/25/12. The State alleged that he was driving a pickup up to 103 mph with BAC .231 when he crashed into a guardrail, and that he had marijuana and cocaine in his system. He pled nolo in exchange for 10 years probation. Judge Salvagni rejected the agreement and he pled not guilty. Salvagni later dismissed the case after ruling that investigators failed to preserve key evidence including a hair consistent with Jennifer’s that was photographed near the driver’s door and recordings of witness interviews and DNA evidence from the driver’s side dash, which could have been used to rebut the State’s theory that he was driving and that Jennifer was ejected from the sunroof. He also ruled that the probable cause affidavit omitted that Jennifer’s and Soule’s DNA were both on the driver’s airbag but only Soule’s was on the passenger airbag, a hair consistent with Jennifer’s hair was on the driver’s door, no fingerprints were recovered from the keys or steering wheel that could have indicated who was driving, no witnesses could identify who was driving, neither Soule nor Jennifer was belted, and both were found outside the vehicle. He also concluded that troopers conducted warrantless searches & seizures in Soule’s hospital room the morning of the crash while he was unconscious and without permission from his family or hospital staff including obtaining health care information, removing his gown & sheet, examining his body, and taking photos of his injuries and personal items. While a urine screening at the hospital tested positive for marijuana & cocaine, a confirmation test was never done and his BAC was never tested for those drugs. The Crime Lab blood draw test indicated .07 BAC and the marijuana in his system was also below the legal limit for medical marijuana cardholders, which Soule was. Soule was represented by Al Avignone in the criminal case.

Soule sued the MHP, AG Fox, Gallatin Co. Atty. Lambert, former Gallatin Co. Chief Dep. Atty. Whipple, and Troopers Josh Brown, Glen Barcus, Josh Giddings, Patrick McCarthy, and Ace Meskimen alleging negligence, malicious prosecution, violation of constitutional rights, IIED, and NIED. The case settled for $100,000 by the Shea Law Firm.

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Bozeman Chronicle Article

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.

By Whitney Bermes – Bozeman Chronicle Staff Writer

The Bozeman Police Department has reached a settlement in a federal lawsuit that claimed excessive force against two of its officers.

In a proposed settlement, the city will pay $150,000 in the 2009 lawsuit filed by Jesse Soheil Verdi against the city of Bozeman, the Bozeman Police Department, the former police chief, a former deputy chief, a former officers and a current officer.

The settlement is awaiting approval of Utah Bankruptcy Court. Verdi, who filed for bankruptcy in Utah and failed o include the lawsuit as an asset, was removed as the plaintiff from the case and replaced by a bankruptcy trustee.

The original suit claimed negligence, assault, battery, false imprisonment and intentional infliction of emotional distress, among other accusations. The lawsuit stems from a 2007 incident in which Verdi was tased by police. Verdi’s friend called Bozeman police requesting a welfare check on Verdi. Former Sgt. Greg Megargel and current officer Marek Ziegler responded.

Verdi was naked and intoxicated when he answered the door. Officers claimed Verdi suddenly attacked Megargel, and Ziegler tased Verdi in the back. Verdi fell face down onto his deck outside of the apartment, hitting his head and injuring his skull. Verdi’s attorneys say he’s had three brain surgeries to remove excessive blood on his brain and help remedy headaches.

Former police chief Mark Tymrak and former deputy chief Martin Kent were originally named in the suit, but last month U.S. District Court Judge Dana Christensen dismissed all counts against the two.

The settlement will be covered by the Montana Municipal Inter-local Authority, an insurance pool for cities and towns, including Bozeman. City attorney Greg Sullivan said, despite the proposed settlement, the city stands by its officers.

“We still fully believe the officers did everything right that night in 2007,” Sullivan said. “It’s a business decision.”

While Bozeman police Chief Ron Price was not with the department at that time, Price reviewed the officers’ conduct and is “comfortable with everything they did,” Sullivan said.

Ryan Jackson and Todd Shea, the plaintiff’s attorneys, declined to comment until the settlement is approved.

Source: The Associated Press

The city of Bozeman has offered a $150,000 settlement in a federal lawsuit that alleges police used excessive force when they shocked a man with a stun gun during a 2007 welfare check.

Officers said Jesse Soheil Verdi was naked and intoxicated and attacked them, leading one of them to shock him with the stun gun. Verdi’s 2009 lawsuit said he fell and hit his head and has had to undergo three brain surgeries.

The settlement must be approved in U.S. Bankruptcy Court in Utah. Verdi filed for bankruptcy in Utah, but didn’t include the lawsuit as an asset. The bankruptcy trustee replaced Verdi as plaintiff.

City attorney Greg Sullivan says the settlement is a business decision. The payment would be covered by the city’s insurance pool.

 

A federal judge overseeing an excessive force lawsuit against Bozeman police has found that authorities intentionally erased a missing audio recording of he incident.  And while U.S. District Judge Richard Anderson found the recording central to figuring out what happened during the incident more than five years ago, he didn’t immediately find the Bozeman Police Department liable for the injuries sustained by Soheil Jesse Verdi.

In his ruling, the judge said all the defendants agreed the audio segment was missing, but they haven’t made any meaningful effort to figure out why. If the audio existed, the judge said it would be favorable to Verdi’s claims of excessive force. “Segment 170 [of the audio tape] is the best evidence regarding what transpired during the three to four minutes in question and is, therefore, relevant material,” Anderson wrote.

 

By WHITNEY BERMES    Chronicle Staff Writer September 28, 2012

Attorneys for a man tased by Bozeman police officers are claiming that an audio segment containing “startling admissions” is missing from evidence turned over in the case.

Todd Shea, attorney for Soheil Jesse Verdi, filed a brief in U.S. District Court in Butte last month asking for the court to find the police department liable for excessive force and award damages to Verdi.    “We would very much like to find out where the missing tape is and what is on the missing tape,” Shea said in an interview Thursday.

On Aug. 12, 2007, a friend of Verdi’s called Bozeman police to request a welfare check on Verdi. Sgt. Greg Megargel and officer Marek Ziegler responded. The lawsuit states Verdi was naked, intoxicated and “stumbling around” when he answered the door. Officers claimed Verdi “suddenly attacked” Megargel and Ziegler tased him in the back. Verdi fell face down onto his deck outside of the apartment, hitting his head and causing injuries to his skull.

Verdi’s attorneys claim he has had three brain surgeries to remove excessive blood on his brain and to help remedy his “excruciating” headaches. Verdi filed a lawsuit against Bozeman police, the city of Bozeman, Megargel, Ziegler, and former police chief Mark Tymrak in 2009.

The case accuses the defendants of excessive use of force, assault and battery, intentional infliction of emotional distress, negligence and false imprisonment as well as evidence spoliation and conspiracy.  According to the brief filed last month, Bozeman police provided the plaintiffs five segments of recordings from Ziegler’s microphone that were numbered 168, 169, 171, 172 and 173. The brief also claims that when listening to the audio, there is not a continuous recording between the files numbered 169 and 171.    Attorneys claim on that tape, after medical personnel close the ambulance door and say goodbye to the officers, Megargel said to Ziegler, “Now we’re (expletive).”    “Yeah what am I gonna clear this as,” Ziegler responds, according to the brief. “Public assistance with a tasing?”    A sound engineer expert, Jeremiah Slovarp, also concluded there was a missing segment.

“I am convinced there is a missing recording file,” Slovarp wrote in the brief.    “The defendants have provided no explanation as to why there is a missing recording file on the audiotape,” Shea wrote in his brief.

The defendants in the case have yet to file a response in court. They were granted an extension that gives them until Oct. 1. When asked for a comment on Thursday, Michael Lilly, attorney for the Bozeman Police Department and the city of Bozeman, said it was “too premature” to comment.