TN THE SIJPREME COURT OF THE STATE OF MOI\?TANA 

STATE OF MONTANA, 

Plaint iff and Respondent, 

-vsGORDON THIEL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honora.ble Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ira Eakin, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attornev General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

, Victor G. Koch, County Attorney; Phillip N. Carter, 5 Deputy County Attorney, Sidney, Montana 

6, 0 

0 & c3 

Submitted on Briefs: November 17, 1988 

Decided: February 3, 1989 

'Clerk 
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

Gordon Thiel appeals from the judgment of the District 

Court, Seventh Judicial District, County of Richland. We 

affirm in part and reverse in part the District Court's 

judgment. 

Two issues are presented for our consideration: 

1. Whether fundamental fairness requires that we 

dismiss Counts I through XXIV; 

2. Whether Thiel's constitutional rights were violated 

by the District Court's refusal to allow him to examine the 

file of the assigned social worker. 

We agree with Thiel's position on issue one and reverse 

the District Court's judgment with regard to Counts I through 

XXIV and dismiss those counts. We affirm the convictions on 

Counts XXV and XXVI. 

This case commenced in 1983. At that time, Thiel was 

charged with two counts of sexual intercourse without consent 

against his stepdaughter, J.P. Plea negotiations with the 

county attorney ensued. The parties agreed that Thiel's 

participation in a sexual offender's treatment program would 

be a condition of the plea agreement. Therefore, Thiel, 

before entering his plea, was evaluated by a psychologist to 

determine whether he was amenable to treatment. During the 

evaluation Thiel admitted to additional instances of sexual. 

misconduct, including the abuse of J.P. 's sibling, T.P., 

several times from 1980 through 1983. This information was 

transmitted to the county attorney and defense counsel durinq 

the course of plea negotiations. A seven year suspended 

sentence was agreed upon rather than a two or three year 

deferred sentence as was initially discussed. The record 

shews that the increase in the sentence recommendation was a 
direct result of the new information. In May, 1984, Thiel 

entered into a written plea agreement with the State. 

Pursuant to the agreement, Thiel pleaded guilty to two counts 

of sexual assault against J.P. and received a seven vear 

suspended sentence. 

Later in July or August, 1984, Thiel had contact with 

T.P. and sexually assaulted her. She did not report the 

assault at that time. In February or March, 1985, the Thiel 

family reunited but in fall of that year T.P. moved out. 

Thiel assaulted J.P. sometime in early 1986. The assault was 

not reported until October, 1986. When both J.P. and T.P. 

were interviewed by authorities, T.P. reported the 1984 

assault and the numerous incidents occurring from 1980 to 

1983 to which Thiel had already admitted during his 

psychological evaluation. 

In November, 1986, Thiel was charged with 26 counts of 

sexual intercourse without consent. Counts I through XXIV 

were based upon Thiel's numerous assaults against T.P. that 

occurred from 1981 through 1983. Count XXV was based on the 

1984 assault against T.P. and Count XXVI was based on the 

1986 assault against J.P. Before trial and prior to voir 

dire Thiel moved to dismiss the first 24 counts, arguing they 

had been the subject of the earlier plea bargain agreement. 

The District Court denied the motion. After the State rested 

its case, Thiel renewed the motion to dismiss. The court 

took the motion under advisement. Thiel was convicted on all 

counts with his motion unresolved. An evidentiary hearing on 

Thiel's motion was then held, after which the court issued 

findings of fact, conclusions of law, and an order denying 

the motion. The court sentenced Thiel to 20 years with all 

but 30 days suspended on each of Counts I through XXIV and, 

on Counts XXTT and XXVI, the court sentenced Thiel to ten 

vears each. It is from this conviction Thiel appeals. 
Thiel first contends that the State is barred from 

prosecuting Counts I through XXIV because these offenses were 

included in the scope of the 1984 plea agreement. He argues 

that it is fundamentally unfair to prosecute him for offenses 

that were revealed and considered during plea negotiations 

and sentencing for the previous charges. We agree. 

The facts of this case demonstrate that Thiel's 

admission to a treatment program was a prerequisite to the 

1984 plea bargain with the State. In order to be accepted 

into such a program, Thiel was required to undergo an 

evaluation of his amenability to treatment. An indication of 

his amenability was his willingness to admit his past 

behavior. Unless the evaluator believed that he had admitted 

all of his offenses, Thiel would not be accepted to the 

program. If rejected by the program, plea negotiations would 

cease, and Thiel would face a prison sentence or fine. 

Hence, in order to ensure the continuance of negotiations, 

Thiel waived his right to remain silent and. underwent the 

evaluation. 

During the evaluation, Thiel revealed several additional 

sexual offenses, including the assaults on T.P. This 

information was communicated to the county attorney as well 

as counsel for the defense. As a result, the sentence agreed 

upon by Thiel and the county attorney was set at seven years 

suspended rather than two or three deferred as orginallj7 

discussed. At the sentencing hearing, the State introduced 

copies of the psychological evaluation and a letter from the 

psychologist to the social worker in charge of the Thiel 

family case. These two documents contained references to 

offenses to which Thiel admitted during the evaluation. 

Thiel had few options other than to sacrifice his right 

to remain silent and reveal his entire past. His revelations 

were used to increase his sentence. Fundamental fairness 
forbids the State from now prosecuting him for offenses for 

which he has essentially already been punished. We therefore 

reverse the District Court's judgment with regard to Counts I 

through XXIV and dismiss those counts. 

Next, Thiel attacks the validity of his conviction on 

Counts XXV and XXVI, claiming he was denied a fair trial 

because he was not allowed to review the contents of the 

assigned social v~orker' s file. Thiel argues that the 

District Court violated his constitutional right to confront 

the witnesses against him when it refused to allow him to 

examine the entire file. 

Section 41-3-205, MCA, governs this issue and reads in 

pertinent part as follows: 

(1) The case records of the department of social 

and rehabilitation services, the department of 

family services and its local affiliate, the county 

welfare department, the county attorney, and the 

court concerning actions taken under this chapter 

and all records concerning reports of child abuse 

and neglect shall be kept confidential except as 

provided by this section. Any person who permits 

or encourages the unauthorized dissemination of 

their contents is guilty of a misdemeanor. 

(2) Records may be disclosed to a court for in 

camera inspection if relevant to an issue before 

it. The court may permit public disclosure if it 

finds such disclosure to be necessary for the fair 

resolution of an issue before it. 

The constitutionality of 41-3-205, MCA, has not 

directly been determined by this Court. The United States 

Supreme Court, however, examined a similar statute in 

pennsylvania v. Ritchie (1987), 480 U.S. 39, 107 S.Ct. 989, 

94 L.Ed.2d 40. The Court concluded that the defendant's 

right to confront his accusers -- was not violated by a 

Pennsylvania statute requiring that child abuse investigative 

files be kept confidential. The Court stated that as long as 

the defendant was not. prevented from cross-examining the 
victim, his right to confront witnesses was not violated. 

Ritchie, 480 U.S. at 54, 107 S.Ct. at 1000. 

Thiel was given wide latitude at trial to cross-examine 

all witnesses against him. We agree with the position of the 

Court in Ritchie and hold that Montana's child abuse 

confidentiality statute as it applies to file review does not 

violate a defendant's right to confront his accusers. 

Thiel also hints that disclosure of the full file is 

compulsory according to law because it may contain exculpatory evidence. This, too, was considered by the United 

States Supreme Court in -- Ritchie. The Court concluded that as 

long as the statute allowed the trial court to review the 

case worker's files in camera and to release material 

information from the file to the accused, the defendant's 

interest in ensuring a fair trial was fully protected. 

Ritchie, 480 U.S. at 60, 107 S.Ct. at 1003. 

The Court expressed the policy underlying this 

procedure: 

To all-ow full disclosure to defense counsel in this 

type of case would sacrifice unnecessarily the 

Commonwealth's compelling interest in protecting 

its child abuse information. If the CYS records 

were made available to defendants, even through 

counsel, it could have a seriously adverse effect 

on Pennsylvania's efforts to uncover and treat 

abuse. Child abuse is one of the most difficult 

crimes to detect and prosecute, in large part 

because there often are no witnesses except the 

victim. A child's feelings of vulnerability and 

guilt, and his or her unwillingness to come forward 

are particularly acute when the abuser is a parent. 

It therefore is essential that the child have a 

state-designated person to whom he may turn, and to 

do so with the assurance of confidentiality . Relatives and neighbors who suspect abuse also will 

be more willing to come forward if they know that 

their identities will be protected. Recognizing 

this, the Commonwealth--like all other States--has 

made a commendable effort to assure victims and 

witnesses that they mav speak to the CYS counselors 

without fear of general disclosure. The 
Commonwealth's purpose would be frustrated if this 

confidential material had to be disclosed upon 

demand to a defendant charged with criminal child 

abuse, simply because a trial court may not 

recognize exculpatory evidence. Neither precedent 

nor common sense requires such a result. 

Ritchie, 480 U.S. at 60-61, 107 S.Ct. at 1003-04. 

At trial, the District Court twice examined in camera 

the social worker's file. As does the highest court in the 

land, so do we think that the appellant's rights were fully 

protected by the District Court's in camera study of the 

social worker's file. We affirm on this issue. 

We affirm Thiel's conviction on Counts XXV and XXVI, 

reverse the judgment on Counts I through XXIV, and remand for 

proceedjngs in accordance with this opinion. 

We Concur: / 

Judge sittinq for Justice 

trict Judge, sitfkbg for 

Justice R. C. McDonough -7-