No. 12746 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

BERNARD JAMES FITZPATRICK , 

Petitioner, 

ROGER W. CRIST, WARDEN MONTANA STATE PRISON, 

Respondent. 

Counsel of Record: 

For Petitioner: 

David J. Patterson, argued, Missoula, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney General, 

argued, Helena, Montana 

Submitted : November 12, 1974 
Mr. Chief Justice James T. Harrison delivered the Opinion of the 

Court. 

This is an original proceeding in this Court. 

On April 15, 1972, petitioner Bernard Fitzpatrick and on 

April 17, 1972, one Gus Gardner were arrested for the murder 

of a fellow inmate at the Montana State Prison in Deer Lodge, 

Montana. During the trial on February 28, 1973, Gardner was 

granted a directed verdict of not guilty, but petitioner was 

convicted of second degree murder and sentenced to a term of 

twenty years, to be served consecutively with the five year term 

he was serving at the time of his arrest. Petitioner unsuccessfully 

challenged certain evidentiary matters upon appeal to this Court, 

which affirmed his conviction on December 4, 1973. State v. 

Fitzpatrick, Mont . , 516 P.2d 605, 30 St.Rep. 1052. 

On April 22, 1974, petitioner filed pro se a "Petition for 

Writ of Habeas corpus" with this Court. Among other things, he 

alleged the district court prejudiced his rights by failing to 

make timely appointment of counsel; to arraign him in the manner 

required by law; or to grant him a speedy ttial as demanded. 

On the same day this Court issued ail order referring the 

petition to the Montana Defender Project in order that it ascertain 

the validity of petitioner's allegations and take appropriate 

action. The Montana Defender Project is a clinical legal aid 

program supervised by the University of Montana Law School and 

staffed by senior law students. Professor David J. Patterson and 

student Ken Green spent several months investigating petitioner's 

claims and from prison records, letters, and the like, were 

able to construct a factual framework satisfactory to this Court 

for the purpose of acting upon the petition. Finally, it was 

agreed among all concerned that in order to expedite matters this 

proceeding would be considered a post-conviction hearing, (See 

Chapter 26, Title 95, R.C.M. 1947, Sections 95-2601-2608), rather 

than an application for habeas corpus under the Montana Rules of 

Criminal Procedure. 
The briefs with attached exhibits submitted in petitioner's 

lehalf by the Montana Defender Project bring to light these events: 

After his "arrest" on April 15, 1972, petitioner was taken to a 

segregation cell within the main walls of the prison. Three days 

later a complaint charging murder was issued and an initial hearing 

was held in the deputy warden's office. Petitioner and Gardner 

were informed of their rights, including the right to appointed 

counsel. Petitioner requested appointed counsel at that time. 

On April 26, 1972, petitioner was transferred from his segregation cell to a maximum security cell (one used for disciplinary 

purposes) where he stayed until July 19, 1972. 

On May 4, 1972, petitioner sent a letter to the Honorable Sid 

Stewart, then district judge of the third judicial district, requesting a court appointed attorney. While awaiting word on this 

request, petitioner had his wife contact the law firm of Sandall, 

Moses 6 Cavan of Billings, Montana, about the possibility of representing him and Gardner. Shortly thereafter, D. Frank Kampfe, 

Esq., of that firm, made an appointment to visit petitioner to 

discuss the case and make fee arrangements. 

On May 18, 1972, William Taylor, Esq., of Deer Lodge visited 

petitioner at the prison. Apparently Taylor was sent by Judge 

Stewart in response to petitioner's letter of May 4. After discussing the case with petitioner, Taylor advised petitioner he 

would not represent him. 

Kampfe visited petitioner and Gardner at the prison on May 30, 

1972. Gardner paid Kampfe $800 as a retainer and informed him that 

he (Gardner) might be able to raise the money needed to represent 

both defendants. Petitioner claimed an inability to pay anything. 

On July 5, 1972, Kampfe withdrew from the case because of a 

conflict of interest within his law firm. He returned $700 to 

Gardner, keeping the other $100 for time and expenses incurred in 

making the visit to the prison. Kampfe also advised the Montana 

Defender Project of the case and asked that defendants be contacted 

as soon as possible. 
On July 12, 1972, the Montana Defender Project notified pep 

titioner that the Defender Project did not represent anyone at 

the trial level. Professor Patterson, however, offered to keep 

petitioner advised of the proceedings against him and informed 

him of his right to court appointed counsel. 

On July 15, 1972, three months after his arrest, petitioner 

was still in maximum security and without the aid of counsel. 

On this date, in a letter to the Montana Defender Project, petitioner expressed his disappointment with the project's inability 

to represent him and mentioned his difficulities in getting legal 

assistance; his confinement in maximum security since April; and, 

his ignorance of the situation. He closed with a plea to have 

1 I someone from the ~efender's Project come down and talk to us and 

let us know just what is going on. I I 

On July 25, 1972, petitioner sent these papers to the district 

court : 

I. A motion to file and proceed in forma pauperis; 

2. A motion for appointment of counsel; 

3. A demand for speeetrial; and 

4. A motion to dismiss. 

All of these papers were received and filed in the district court 

on July 27, 1972. 

On August 22, 1972, over four months (126 days) after the 

initial appearance, petitioner's preliminary hearing began. Petitioner testified he was indigent and requested appointed counsel. 

The hearing therefore was continued for a week to allow appointment 

of counsel. The state, however, did take depositions of four major 

witnesses then present. 

On August 24, 1972, Judge Stewart appointed James J. Masar, Esq., 

of Deer Lodge to represent petitioner. From the initial hearing, 

where petitioner first requested appointment of counsel, to the 

actual appointment there was a delay of over four months (128 days). 

On August 28, 1972, the preliminary hearing was completed. The 

order binding petitioner and Gardner over to the district court for 
trial was issued on October 4, 1972, and the Information against 

them was filed on October 12, 1972. 

The trial of both defendants began on February 26, 1973, 

and lasted two days. From the date of the demand for speedy trial 

to the date of the trial over seven months (216 days) had elapsed. 

In light of the above facts, petitioner contends: 

1. The four month delay between the initial hearing and the 

preliminary hearing violated section 95-902, R.C.M. 1947. 

2. The four month delay in the appointment of counsel deprived petitioner of his right to effective counsel. 

3. The seven month delay between the demand for speedy trial 

and the trial deprived petitioner of his right to a speedy trial. 

At the outset it should be observed that we are proceeding 

on the assumption petitioner has not waived these issues, despite 

his failure to raise them earlier. We do not reject the general 

proposition that such questions should be interposed as promptly 

as possible, but only say that the unusual facts of this case make 

a clear cut determination of waiver difficult. Unless there is 

substantial evidence of waiver, constitutional claims must be heard 

on their merits. 

The basic right to counsel is firmly established by the United 

States and Montana Constitutions and the Montana Code of Criminal 

Procedure. The narrow issue here in when this right attaches 

and whether a four month delay in the appointment of counsel, while 

the defendant is confined in maximum security, renders counsel ineffective. We are convinced that under both federal and Montana 

law petitioner's right to appointed counsel attached no later than 

his initial hearing; that petitioner did not waive his right to 

appointed counsel; and that the delay in the appointment of counsel 

was prejudicial to petitioner's case. 

Our law provides that any arrested person must be brought without 

unnecessary delay before a judge for an initial appearance, and 

that it is the duty of that judge to advise defendant of his right 

to counsel, and of his right to have counsel assigned by a court of 
record. Sections 95-901 and 95-902, R.C.M. 1947. Obviously the 

court's duty cannot end with a mere reading of his rights to 

defendant; if defendant requests counsel to be appointed the 

court without unnecessary delay must determine indigency and 

appoint counsel accordingly. How can this duty be fulfilled by 

delaying the appointment of counsel for four months while the 

state prepares its case and the defendant lingers in a prison 

or a jail? The length of the delay here, coupled with petitioner's 

plight during the interim, shocks one's concept of fundamental 

fairness and due process. Federal cases compel the same result. 

See: Escobedo v, Illinois, 378 U.S. 478, 84 S,Ct. 1758, 12 L ed 

2d977; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 

L ed 2d 1149. 

Our holding on the issue of delay in appointing counsel for 

petitioner is buttressed by a showing of actual prejudice. One 

defense petitioner raised at trial was that of alibi. The delay 

saw a release from the state prison of many potential alibi 

witnesses and caused a loss of memory in those who remained, 

On April 15, 1972, the date of petitioner's arrest, the section 

of the prison to which petitioner was assigned contained 112 

inmates, By August 24, 1972, the date counsel was appointed, 65 

of these inmates had been released. This turnover of inmates 

seriously undermined counsel's ability to conduct interviews to see 

who could verify petitioner's alibi. 

Another defense concerned the interchange and labeling of 

prisoner clothing. Introduced in evidence at trial were three 

articles of blood stained clothing. Only one of these articles-- 

a pair of prison issued levis--bore petitioner's name. Petitioner 

contends that on the day of his arrest he could account for all 

the lev* issued to him, but the *l$y in appointing counsel made 

it impossible for his attorney to investigate and prove such a 

contention. Unquestionably, the deprivation of counsel for four 

months rendered these defenses virtually meaningless. 
We also believe the seven month delay between the demand for 

speedy trial and the trial itself violated petitioner's right 

to a speedy trial. The United Sta tes and the Montana Constitutions 

guarantee an accused the right to a speedy trial. The United States 

Supreme Court and this Court have adopted essentially the same test 

It to determine whether a trial is speedy". Compare Barker v. Wingo, 

407 U.S. 514, 530, 532, 92 S.Ct. 2182, 33 L ed 2d 101, with State 

v. Lagerquist, 152 Mont. 21, 445 P.2d 910. Barker describes 

this test as a balancing test "in which the conduct of both the 

prosecution and the defendant are weighed." It identifies the 

factors involved as : 

1. Length of delay; 

2. Reason for delay; 

3. ~efendant's assertion of the right; and 

4. Prejudice to defendant. 

Applying this test to the instant case, we find: 

Length of delay: Seven months. We emphasize this delay is 

not considered a per - se violation of petitioner's right to a 

speedy trial, but under the circumstances here it is thought long 

enough to shift to the state the burden of explaining the reason for 

the delay and showing absence of prejudice to petitioner. 

Reason for delay: The state's contention that it took much 

time to gather and analyze the evidence used against petitioner 

at his trial is unsatisfactory because the record here explains 

this caused no more than two and one-half months of the delay. 

Moreover, the evidence gathering process started before petitioner 

demanded a speedy trial. It is not seriously contended that 

petitioner or his counsel contributed to the delay. 

~efendant's assertion of the right: petitioner's written 

demand for speedy trial seven months before his trial began is a 

matter of record. 

Prejudice to defendant: Barker explained what lay at the heart 

of this fourth factor: 
"* * * Prejudice, of course, should be assessed 

in the light of the interests of defendants which the 

speedy trial right was designed to protect. This 

Court has identified three such interests: (i) to 

prevent oppressive pretrial incarceration; (ii) to 

minimize anxiety and concern of the accused; and (iii) 

to limit the possibility that the defense will be 

impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare 

his case skews the fairness of the entire system. 

If witnesses die or disappearduring a delay, the pre- 

'udice is obvious. There is also prejudice ii defense 

iitnesses are unable to recall accurately events of the 

distant past. Loss of memory, however, is not always 

retlected in the record because what has been forgotten 

can rarely be shown. " (Emphasis added). 

To the same effect is State v. Mielke, 148 Mont. 320, 322, 420 

P.2d 155, citing United States v. Ewell, 383 U.S. 116, 86 S.Ct. 

773, 15 L ed 2d 627. 

We think petitioner was clearly prejudiced with respect to all 

three interests discussed in Barker. First, when petitioner was 

arrested he was serving a sentence at the "honor farm" of the state 

prison, but thereafter he was placed in maximum security for over 

three months. Without more, the state merely asserts such confinement was lawful and necessary. This is hardly sufficient to 

carry the state's burden. 

Second, petitioner's predicament maximized, rather than 

minimized, his anxiety and concern. This is amply demonstrated 

by his letter of July 15, 1972, to the Montana Defender Project 

and by his motion for speedy trial of July 27, 1972, wherein he 

alleged physical and mental anguish of such a nature as to inhibit 

him from assisting in his own defense. The state's position that 

any man accused of a serious crime will suffer some anxiety and 

concern and that minimization of these emotions is largely subject 

to individual quirks of personality utterly fails to come to grips 

with the stark realities here. 

Third, what has already been said about the delay in appointment 

of counsel impairing petitioner's alibi defense applies even more 

strongly to the problem of speedy trial, since petitioner's trial 

was delayed another six months after counsel was finally appointed. 
From the foregoing, it is plain the state by its unexcused 

inaction deprived petitioner of effective representation by counsel 

and a speedy trial. Since we have decided the case on these issues, 

it becomes unnecessary to consider whether section 95-902, R.C.M. 

1947, was violated. 

The judgment of conviction of February 28, 1973, is-set aside 

and the sentence vacated, with prejudice. 

..................................... Chief Justice 

We Concur: 

Justices.