Hartman v. Knudsen

• Decision Date: 12 August 2022
• Docket Number: CV 22-57-M-DLC
• Parties: KIP HARTMAN, Petitioner, v. AUSTIN KNUDSEN; MARCIA BORIS, Respondents.
• Court: U.S. District Court — District of Montana

KIP HARTMAN, Petitioner, v. AUSTIN KNUDSEN; MARCIA BORIS, Respondents.

No. CV 22-57-M-DLC

United States District Court, D. Montana, Missoula Division

August 12, 2022

ORDER

DANA L. CHRISTENSEN, DISTRICT JUDGE UNITED STATES DISTRICT COURT

This matter comes before the Court on Petitioner Hartman's application for a writ of habeas corpus under 28 U.S.C § 2241. Hartman faces a second trial in Montana's Nineteenth Judicial District Court, Lincoln County, and asserts double jeopardy. The trial court graciously vacated the trial date pending resolution of the federal petition. See Order (Doc. 6-1), State v. Hartman, No DC 19-75 (Mont. 19th Jud. Dist. Mar. 23, 2022).

I. Proceedings in State Court

The State charged Hartman with nine fraud counts stemming from his taxadvice business. The trial court scheduled nine days for trial, beginning on Tuesday, January 26, 2021, and ending on Friday, February 5, 2021. See Am. Minute Entry (Doc. 1-28) at 1. To accommodate social distancing, trial was held in the Libby Memorial Events Center.

At a pretrial conference on December 22, 2020, the trial court asked whether trial could be completed in nine days. Defense counsel said, “Well, looking at the State's witness lists and our respective exhibit lists, I don't see how we do it in nine days, but maybe we could, I don't know.” The trial court told the parties nine days was the limit: “I am setting nine days and I am not going over nine days.” Pretrial Conf. Tr. (Doc. 10-10) at 15:17-16:7.^[1]

At the final pretrial conference, the trial court told the parties that it would “try to stay out of it” and let the attorneys “[w]ork the case the way you're going to work the case. But obviously, we're not going to waste time.” Final Pretrial Conf. Tr. (Doc. 10-9) at 27:4-16. Discussing its reluctance to “bring the hammer down,” the trial court said:

I may, during the course of the trial. And I think it's only fair that if I think that we're spinning our wheels if I think we are stuck on an issue, if I think we are wasting the jury's time, I'm going to let everybody know. And I'll try to do it gently. If that doesn't work, it will be more forceful.

You guys are all experienced trial lawyers; you know what's going on. You know how to get there. I don't have any concerns about this, but things happen. We get stuck, we start spinning our wheels. We think we hear something when we heard something else or any of that. In those instances, I'm going to remind you.

Because these people [on the jury] are taking nine days out of their lives to get this right.

Final Pretrial Conf. Tr. at 16:6-22.

The parties knew they would each have equal time to present their cases. See, e.g., Final Pretrial Conf. Tr. at 14:4-16. Several times, however, defense counsel expressed concern that he would not have enough time to conclude his case by Friday, February 5. See, e.g., id. at 14:4-15, 18:23-19:5; 5 Trial Tr. (Doc. 10-4) at 754:8-755:7; 7 Trial Tr. (Doc. 10-6) at 1511:4-7, 1512:8-24.

On the morning of the fifth day of trial, Monday, February 1, the trial court advised the parties that the State had ten hours remaining to conclude its case-in-chief, cross-examine defense witnesses, and present rebuttal. Defense counsel had 14 hours remaining. Counsel told the trial court he was “not sure there's 24 hours in this week.” The trial court assured him that six hours of testimony would be heard every day^[2] and testimony would conclude on Thursday, leaving Friday “to do everything else,” that is, settling and reading jury instructions and presenting closing arguments. See 5 Trial Tr. (Doc. 10-4) at 752:18-24, 753:5-24.

The State rested its case-in-chief at the end of the day on Tuesday, February 2. Defense counsel had a witness waiting who could testify “briefly” and asked to begin his case-in-chief while reserving his motion under Mont. Code Ann. § 4616-403 (comparable to Fed. R. Crim P. 29). See 6 Trial Tr. (Doc. 10-5) at 1261:17-1263:14; see also, e.g., 7 Trial Tr. at 1337:3-1345:25, 1400:1-1406:22; 8 Trial Tr. (Doc. 10-7) at 1526:8-1528:13 (brief defense witnesses). The trial court released the jury for the day to hear the motion first.

After hearing the motion, the trial court said it would have “a time amount” for the parties the following morning. “We got six hours in yesterday .... I'm certain we got six in today.” It reiterated that the State would have “very little time” and would be limited to three questions on cross-examination if it ran out of time, with no recross. The trial court also said it had “built in some leeway time.” 6 Trial Tr. at 1275:19-1276:9. Defense counsel remained concerned:

Badaruddin: Nevertheless, Your Honor, I'd like to object on the grounds that may client's being denied his state and federal due process rights to present a defense. I can't do it in two days. I thought I had two-and-a-half, by the way. I thought I had a portion of Friday. I was counting on that. Am I wrong?

The Court: You have-I told you Monday morning you had 14 hours to use however you want.

Badaruddin: Yes, sir.

The Court: That's what you got. I'll tell you exactly tomorrow morning how many hours you have left. If we have to add on because the State has gone over its times, and I allow them three questions only, I will allow that to yours. And if we have to go into Friday to adjust for that, we can; okay?

Badaruddin: Yes, sir.

The Court: That's what I'm telling you. Whatever the 14 hours were the State had, I think somewhere in the neighborhood of ten, you had somewhere in the neighborhood of 14. And I've just been doing-I did subtraction yesterday. I'll do subtraction tonight.

Badaruddin: Yes, sir. I don't challenge the Court's calculations-

The Court: I know.

Badaruddin: -only that I still don't have enough time. And I'd ask for more, like maybe till Monday, maybe five minutes. But whatever the Court can consider giving me, I don't have enough time left in the week. And I'm, of course, going to use it as efficiently as possible. But in the end, I don't see how I can do it, consistent with Mr. Hartman's right to the effective assistance of counsel and due process and a fair trial. Maybe he needs more time. That's what I'm suggesting to the Court. ...

The Court: . . . [T]his is my initial reaction to it, Mr. Badaruddin. I have the breakdowns of directs and crosses. And I have been, I think, quite clear from the beginning of this. How much time anyone had to utilize. And I think it was the first day you told me you were keeping track too.

Badaruddin: Yes, sir.

The Court: So this doesn't come as a surprise. It shouldn't come as a surprise. You, on multiple of these witnesses, you crossed longer than there was direct. And I make no comment on that. I think that's entirely appropriate in certain circumstances. You chose how to defend this case. ...

Badaruddin: . . . [W]hile I know how much time I've used, I don't think I've wasted it. Sometimes things happen while the witness is on the stand, and I can choose to sit down or keep going. And that's a difficult decision when it's the Defendant's due process rights that weigh in the balance.

The Court: And I'm not suggesting that you wasted any.

Badaruddin: Thank you, Your Honor. I'm constantly mindful of the clock ticking.

The Court: I appreciate that.

Badaruddin: So I just ask that my client's due process rights to present his defense not suffer for the sake of the constraints we're under. It's his only chance.

6 Trial Tr. at 1276:10-1277:18, 1279:3-15, 1280:1-15.

On Wednesday morning, just before Hartman began his case-in-chief, the trial court advised that the State had 215 minutes, or about three and a half hours, for its cross-examination and rebuttal. The defense had 491 minutes, or about eight hours. See 7 Trial Tr. at 1287:9-10, 1287:16-17.

The trial court advised the parties of their remaining time at various points on Wednesday and Thursday. At the afternoon break on Thursday, the trial court told defense counsel he had 37 minutes remaining in his case-in-chief. See 8 Trial Tr. at 1716:7-19.

Defense counsel completed his eleventh witness on Thursday at about 4:45 p.m. The trial court asked if he wished to call another witness. Counsel replied that another witness was ready, but he could not finish his direct examination in fifteen minutes. He said, “We could start, or we could-whatever the Court's pleasure.” See 8 Trial Tr. at 1773:7-14. The trial court said “it doesn't seem to make much sense” to start a new witness. The jury was excused for the evening recess. See id. at 1773:19-20.

After the jury left, the trial court informed defense counsel that fifteen minutes were all that remained in his case-in-chief. Counsel objected that his last witness-defendant Hartman-could not testify in fifteen minutes. Citing McCoy v. Louisiana, he argued that Hartman, personally, was entitled to choose whether to testify and that preventing him from doing so because of counsel's time mismanagement would be “structural error”- that is, reversible regardless of whether he could show he was prejudiced by not testifying. See 8 Trial Tr. at 1775:1-1777:24. Counsel said he had provided ineffective assistance by failing to complete his case, and he urged the trial court to give him extra time so that Hartman could testify. He concluded:

I made a decision as to what witnesses to call, how long-what questions to ask on cross. I tried to be efficient. I have failed. But I cannot mismanage Mr. Hartman's right to testify away. And if I have, I submit the Court must intervene to protect his right to testify.

In other words, what you have to do is if you-you're going to have to order him off the stand. And I submit you cannot do that, consistent with the Sixth Amendment, and consistent with Article 2 of the state

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