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AG Knudsen asserts prosecutorial authority over local assault, gun case

Says drop gun charges, in fight over face-masks
Montana Attorney General Austin Knudsen (April 2021)
Posted at 1:29 PM, Aug 19, 2021
and last updated 2021-08-20 18:24:02-04

HELENA — In a case involving a Helena man accused of assaulting restaurant employees and threatening them with a gun after being told he had to wear a face-mask, Attorney General Austin Knudsen took the unusual step this month of ordering local prosecutors to drop two gun-related charges against the man.

Lewis and Clark County Attorney Leo Gallagher refused, saying it would violate his oath of office – and told Knudsen’s office last week it should take case itself, if it wanted to dictate the terms of prosecution.

“I’ve been practicing law since 1978 (and) spent all of those years either defending or prosecuting cases in the criminal arena,” Gallagher told MTN News Tuesday. “I’ve never heard of a case such as this occurring.”

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Lewis and Clark County Attorney Leo Gallagher.

Knudsen’s office then took over prosecution of the case last week – and Gallagher learned a day later that the lawyer for defendant Rodney Smith is negotiating a settlement with the attorney general.

Knudsen spokesman Kyler Nerison told MTN News Thursday the office had reviewed the case and found “a lot of problems” with it.

“It looked like a political prosecution,” he said. “You’ve got a Democratic county attorney, Leo Gallagher, who’s on the ballot next year, (who) took a look at this and saw some opportunities to score some political points with his base, and prosecute two charges where the (law) is not even on the books any more.”

Gallagher, who said he’s not running for re-election next year, said he views his job as “apolitical,” and that Smith’s actions last November violated concealed-weapon laws at the time of the offense.

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MT Justice Department spokesman Kyler Nerison.

The 2021 Legislature relaxed Montana gun laws in February, making it legal to carry concealed weapons without a permit, in some situations, and allowing concealed weapons in places that serve alcohol.

“The Legislature did not make that law retroactive, and (Smith) violated the laws at the time,” Gallagher said. “I don’t see why it would be the attorney general’s function to read into the law something the Legislature did not put into the law.”

Yet Smith's attorney, Palmer Hoovestal of Helena, told MTN News Friday he believes the new law on concealed weapons could be interpreted to be retroactive, and that Gallagher is wrong on it application. Hoovestal also confirmed that he's been in discussions with the attorney general's office about possible resolution of the case.

Smith was charged last November, after he was arrested following an altercation Nov. 6 at the Hokkaido restaurant in downtown Helena.

Charging documents said Smith and his wife had entered the restaurant and refused to comply with requests to wear a face-mask.

After being told he would not be served, Smith knocked water glasses off the table and got in a fight with restaurant employees, the charges said. He struck one employee several times in the genitals and pinned that employee to the wall, the charges said.

The charges said Smith later revealed a holstered gun on his waistband and told the employee that “I’m going to get you.” Restaurant employees called the police and Smith was stopped in his vehicle outside and arrested.

Gallagher’s office charged Smith with four criminal counts last November: Felony assault for threatening someone with a firearm, misdemeanor assault for fighting with the restaurant employees, carrying a concealed weapon without a permit and illegally carrying a concealed weapon in an establishment that serves alcohol. The latter two charges are misdemeanors.

But as of February, the latter two acts are now legal. The new gun-possession law passed by the 2021 Legislature abolished the restriction on carrying concealed weapons in bars or other places that serve alcohol and allows anyone who can legally possess a firearm to carry a concealed weapon.

Nerison also said the Justice Department’s review showed there may be “a different set of facts” in the case, that indicated what happened may not be as described in the charges.

“Basically, it came down to a `he-said, she-said’ endeavor,” he said.

Gallagher said he assigned the case to one of his deputies last year and thought nothing of it until July 29, when he got a letter from Derek Oestreicher, the general counsel for Knudsen and third-ranking lawyer in the state Justice Department.

The letter, without explanation, told him to “take no action” on the case without first consulting with Knudsen’s office and to produce the entire file on the case.

“Please await further instruction related to this matter, pending review of the evidence and case file by attorneys for the Department of Justice,” the letter said.

State law gives the attorney general “supervisory authority” over county attorneys, but that authority is rarely invoked, and usually only when the county attorney requests it.

Gallagher said such requests usually occur when a local prosecutor has a complex criminal case and needs state expertise and assistance, or if there’s some sort of conflict of interest with his or her office.

Gallagher said he’s never seen the attorney general get involved in a simple assault case such as Smith’s.

When asked if the attorney general’s office explained why it was exercising authority over the case, Gallagher said: “No, they didn’t. And they never have.”

Gallagher prepared the case file for Oestreicher, and a week later, on Aug. 10, received an email that said the attorney general’s office would not be taking over the case. However, Oestreicher’s email ordered Gallagher to drop the concealed-weapon charges against Smith.

Gallagher told MTN News he couldn’t agree to dropping those charges, because there was “probable cause” to pursue them, and that they could affect how his office pursued the case.

He conveyed that message to Oestreicher in an email on Aug. 10, when he said the attorney general should take over the case.

“I cannot in good conscience move to dismiss those counts and comply with my oath of office,” he wrote. “Please assign this case to (the state Prosecution Services Bureau).”

The next day, Aug. 11, Smith’s attorney, Palmer Hoovestal, filed a motion to delay the Aug. 30 trial and other proceedings in the case because the state had a new prosecutor – the attorney general’s office – and that settlement talks were under way.

“It is anticipated that these settlement negotiations will be successful and that a trial will be unnecessary,” Hoovestal wrote.

Gallagher said his objection to the attorney general inserting itself into the Smith case is similar to when he, as head of the Montana County Attorneys Association, objected to the U.S. Justice Department’s actions nine years ago in Missoula.

The Justice Department, under then-President Obama, investigated local Missoula prosecutors for their handling of multiple rape and sexual-assault cases.

“I have always believed that local county attorneys, if they are doing their job, ought to be free to do it unless they’re misbehaving – whether that be from Washington, D.C., or Helena, Montana,” he said.