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Lawsuit accuses Mineral County officials of misconduct, asks for audit of court cases

Mineral County pledges to rectify problems, follow court orders
Posted at 12:06 PM, Oct 10, 2022

Dozens of people have accused Mineral County officials of misconduct in trying criminal court cases and failing to adequately vet law enforcement officers. Now the county attorney is pledging to clean up the mess.

In a recent court filing, attorneys for the complaining residents argue the Mineral County attorney failed to disclose exculpatory evidence, known as Brady information, as required by law. One lawyer, Lance Jasper, estimated more than 100 people who went through the justice system there might be affected.

A separate filing is calling out the Mineral County Sheriff’s Office over allegations of improper hiring practices, reports the Daily Montanan.

“The Mineral County Attorney has violated its duty to protect its citizens and individuals passing through Mineral County,” the Sept. 20 filing reads. “This failure is due to the County Attorney’s refusal to review closed cases, ongoing refusal to disclose Brady information, lack of investigation into the Brady issues of law enforcement officers in Mineral County, and disclosure of confidential criminal justice information to parties who are not authorized by the law to receive it.”

In the 1963 Brady v. Maryland case, the U.S. Supreme Court said prosecutors must disclose to the defense any evidence in the government’s possession, including evidence maintained in a police officer’s personnel files, that may prove a defendant’s innocence.

The attorneys are asking for a district court judge to order the Sheriff’s Office to audit its hiring practices and the County Attorney’s Office to investigate all cases in which Brady information should have been disclosed.

“The residents of and individuals passing through Mineral County are having their Constitutional and Statutory rights ignored by the Mineral County Attorney’s Office despite rulings from the justice and district courts that their actions are illegal and resulting in dismissals of their cases,” the filing reads.

The petitioners are represented by Jasper and Jordan Kilby of Reep, Bell and Jasper.

In June, Jasper wrote a letter to the Mineral County Attorney’s Office alleging misconduct.

The letter was spurred, in part, by a decision from a Missoula County judge who said the county failed to make a punctual disclosure in a criminal case. In that case, Missoula County District Judge Leslie Halligan said, “Timely disclosures are required for due process, and they ensure fair trials.”

Since that ruling, at least nine cases in Mineral County have been dismissed because Brady information was not properly disclosed, but Jasper said he expects the actual number of people affected is much higher.

“I expect that number to be over 100,” he told the Daily Montanan. “Right now I have 25 victims, myself, and I do probably 10 percent of the work out there.”

In a separate order on Sept. 12, Missoula County District Judge Jason Marks said Mineral County must disclose all material in its possession regardless of whether it implicates or exonerates defendants.

In that case, Marks ruled that the county did not violate any Brady laws, but he said it must be more diligent in disclosing information going forward.

SpecificallyMarks said Mineral County should inspect the personnel files of all officers at the Mineral County Sheriff’s Office and develop policies to ensure Brady information is properly disclosed.

“…the court is aware of ongoing issues regarding the Mineral County Attorney’s Office, its alleged Brady violations, and related litigation. The court has provided relevant guidance herein in the hopes that similar issues will be avoided in the future,” Marks wrote.

“Thus, under the totality of the circumstances, any future Brady violation is subject to severe sanctions. The court formally cautions the Mineral County Attorney’s Office that it will treat any future Brady violation in this case — or any other case — as deliberate and purposeful.”

In an interview with the Daily Montanan, County Attorney Debra Jackson said the county is dedicated to rectifying the situation and will abide by any court orders and specifically to the Sept. 12 ruling.

“I believe that we are going to follow exactly the guidelines that the court provided … and we are going to follow those to a tee,” Jackson said.

Mineral County Sheriff Mike Toth declined to comment on the litigation when reached by phone and directed all questions to the County Attorney’s Office.

In response to questions, Jackson was unequivocal about the county’s commitment to reform. She said the County Attorney’s Office has changed how it vets potential law enforcement officers, expanded background checks and required human resources and county attorney representatives to be involved in the hiring process.

“We are going to do whatever is necessary to clean this mess up,” said Jackson, who has been the county attorney for less than a year but served as Deputy County Attorney prior.

Call for audit of hiring practices

The plaintiffs in the case point to specific law enforcement incidents in their calls for an audit of hiring practices, and the filing alleges three officers have violated the rights of many Mineral County citizens: Deputy David Kunzelman, former Deputy Shawn Visintin, and former Deputy Patrick Nobles.

Visintin and Nobles no longer work for Mineral County.

In a phone call with the Daily Montanan, Visintin defended himself against the allegations and said he believes he remains fit to serve as a law enforcement officer.

Nobles could not be reached for comment, and when reached by phone, Kunzelman said he was not sure if he could comment on the ongoing litigation and ultimately declined to respond.

In calling for an audit of hiring practices, the filing references a 2021 case where Visintin made a traffic stop for a lighting violation. In that case, Visintin drafted a search warrant application, swore to its contents and presented the application to a District Court judge, according to the court document.

Another District Court judge later determined that Visintin was untruthful in his sworn application and testimony, and the state failed to disclose this determination to other defense attorneys, the filing says.

“Visintin acted as an officer for two years, making arrests, charging people with crimes, changing the lives of many, without ever being qualified to be a peace officer,” the filing reads.

The filing also says the county did not do its due diligence in 2020 when hiring Visintin, who court documents show had previous run-ins with the law and warnings from Montana Public Safety Officer Standards and Training Council, or POST, about his eligibility to serve as an officer in Montana.

Montana law requires any law enforcement officer be certified by POST.

Visintin was charged with rape in Gallatin County in 2015, but was ultimately found not guilty, according to the filing in Mineral County. He also pleaded guilty to felony burglary in Idaho and pleaded no contest to illegally carrying a firearm in Hawaii in 2012, though both cases were ultimately dismissed, according to the lawsuit.

Despite the not-guilty findings and the dismissals, Montana POST still found the underlying conduct as “rendering (Visintin) unsuitable for POST certification,” according to the lawsuit.

Before coming to Mineral County, Visintin unsuccessfully applied to be an officer in Livingston.

According to the filing, Mineral County Commissioners, the county attorney and the Sheriff’s Office challenged the POST decision not to certify Visintin as a peace officer.

“They did so either knowing that in addition to felony charges in Idaho, he pled guilty in Hawaii for a firearms charge, which was later overturned on procedural grounds, and he had faced charges of sexual intercourse without consent in Gallatin County, or in the alternative they did not conduct a competent background check as required by Montana law,” the filing reads.

Visintin told the Daily Montanan that he is in the process of appealing his POST certification status. He said he believes constitutionally he should still be able to serve as a police officer because his previous charges and guilty pleas have been overturned or since dismissed.

Call for audits of court cases

In addition to asking the court to audit hiring practices, the lawsuit asks for an audit of all cases where Brady material should have been disclosed. In doing so, the lawyers provide examples of conduct by former Deputy Nobles and Deputy Kunzelman.

“Every defendant who was arrested by one of these Brady cops should have been provided this information before going to trial or entering a guilty plea,” Jasper said. “And not being provided that information caused defendants to make an uninformed decision whether to go to trial or not and prevented defense counsel from using that material to defend their client, which may have resulted in a different outcome.”

The filing accuses Nobles of misconduct on the job, having sex, on duty, with a woman whom he was investigating for a crime. When the woman Nobles was investigating disclosed her relationship with him to one of his bosses, the lawsuit said she was retaliated against.

An exhibit in the case shows Nobles was terminated from his position in Mineral County on March 11, 2022. But neither his termination nor the woman’s interviews disclosing their sexual relationship were provided as Brady material during the woman’s prosecution, according to the filing.

“Despite the obvious Brady information being subject to mandatory disclosure to defendants and their counsel regarding Nobles’ termination, no information was provided to counsel until June 6, 2022,” the filing says.

A July 19 letter from POST shows that Nobles’ certification was at risk of being suspended or revoked over allegations that he “engaged in sexual intercourse while on duty.”

Nobles’ phone was not accepting voicemail messages when reached by the Daily Montanan. He did not respond to a text message or a Facebook message asking for comment on the ongoing litigation.

Court documents say that on Aug. 28, 2021, Kunzelman arrested a man for assault on a peace officer. But in that case, which was presided over by Judge Halligan, the Mineral County Attorney’s Office violated Brady laws by failing to disclose to the defense that he was fired from Missoula County Sheriff’s Office in 2013 after his supervisors learned he had stolen a copy of answers to a written exam administered by MCSO, according to the filing. A 2013 email from the department that’s provided as an exhibit in the case shows that Kunzelman was “terminated pursuant to an internal investigation.”

In April 2021, Kunzelman was hired by Mineral County despite disclosing to Mineral County Sheriff Toth that he had stolen the test answers in 2013, according to the filing. Kunzelman also testified he did not have to take a mental health exam before being hired by Mineral County, according to the filing.

Another court order shows that Kunzelman acted improperly while pulling people over for DUI offenses, like pulling someone over for a non-functioning license plate light despite video evidence showing the license plate lamp was illuminated.

The same filing also said in another case that Kunzelman acted improperly by requesting a blood alcohol test even though he did “not have particularized suspicion to believe” the defendant was driving under the influence of alcohol.

Jasper said the filing is just one step to correcting the alleged wrongs in the county.

“We need to climb a lot more steps to get the problem fixed, and it’s going to require an agency like the U.S. Attorney’s Office, the Department of Justice or the Attorney General’s office to right the ship,” he said.