The Wrong Man

Volume fiVe number two, two thousand nine

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summer

50 Years Later: Hebgen Lake and 8 Seconds that Changed Everything The Evolution of Jack Horner James Welch and the Birth of a Montana Voice

Imprisoned for a Heinous Crime he Didn’t Commit, Jimmy Ray Bromgard Gets on with his Life Poaching a Current through Yellowstone

THE WRONG MAN A sloppy defense and shoddy science cost Jimmy Ray Bromgard 15 years of his life after he was put in prison for a crime he didn’t commit. The Innocence Project, a good lawyer and improved DNA testing gave him back his freedom.

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BY SCOTT

MCMILLION

When prison bosses learned that new DNA

evidence had cleared Jimmy Ray Bromgard of rape charges, they slapped him in irons and hauled him off to the hole, letting him stew in solitary confinement. “I was in the gym working out and about five guards came in and cuffed me up and said ‘you’re going to the hole. You’re under investigation,’” Bromgard recalled of that late summer day in 2002. “I sat there for three days in the hole. They wouldn’t tell me shit.” Then the guards pulled him from his cell for a phone call. That’s when he learned that he’d been exonerated. That’s when he learned that DNA tests had proven what he’d been telling people since 1987: He was innocent of the rape of an 8-year-old girl. That’s when he learned that, after 15 and a half years in prison, he would be released. But not just yet. PHOTOGRAPHY BY THOMAS LEE

M O N T A N A Q U A R T E R LY

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After the phone call, they threw him back in the hole for a couple more weeks. At the time, Bromgard was doing time at the privately owned prison in Shelby, one of those places that tends prisoners for profit. Then Shelby sent him to the state prison at Deer Lodge, for more time in solitary. Then Deer Lodge sent him to Billings, to the county lockup, while the state of Montana performed its own DNA test, to prove for itself that it had imprisoned the wrong man for a beastly crime. Bromgard reckons today the system locked him in solitary for its own protection. Prison bosses feared that, if he were injured somehow, they’d become liable for a lawsuit. He was, after all, an

For a while, depression slapped him down. He spent a week in bed at his mother’s house, unable to rise. “I just laid in bed,” he said. “I didn’t eat, didn’t go out. I was really pissed off at pretty much the world.” Once that passed, he tried to find a job. But there was a 15-year gap in his employment history. He knew how shady that looked, but nobody gave him a chance to explain. “I put in 40 applications in less than a month and never even got one call back,” he said. He was broke and work was elusive. He was living with his mother, wondering in the bad moments if he really belonged outside. “There were times when I wished I was back in prison,” he said. “Because you don’t have to worry about paying bills. You don’t have to worry about food, because they feed you.” But the Montana prison system hadn’t completed its indignities. Two months after his release, an envelope came in the mail. When the state prison releases convicts, it usually pays them some “gate money.” If he’d been guilty, and completed his time or been paroled, he’d have earned gate money of about $700. But he was innocent and the system foundered. After 15 years of wrongful imprisonment, the state sent him a check for $100. Prison was hard. But freedom was no snap either. Not at first, anyway.

A KID WAITING TO GO HOME Bromgard says he tries not to be bitter as he looks toward the future.

innocent man caged in a dangerous place. Finally, the same judge who had sentenced him to 40 years in prison set a court date in Billings. As he prepared to walk into a courtroom, and freedom, jailers insisted on shackles and belly chains, but a prosecutor ordered them removed. “On behalf of the citizens of Montana, let me offer our apologies,” Judge G. Todd Baugh told Bromgard on Oct. 1, 2002. “While the conviction was obviously in error, it was not made in malice.” Bromgard walked into the sunshine, a free man. He talked briefly to reporters. He teared up a bit. But what he really wanted was a cigarette. He wanted to take a walk in a park. And then he wanted to go swimming. So he checked into a motel and hit the pool. But after all those years away from the water he’d forgotten his technique, that he had to breathe out his nose, and when he came gasping to the surface – a big man covered with prison tattoos – he frightened the children sharing the water with him. Welcome to freedom. 10

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lash forward a few years. Bromgard sued, of course. And he won. Now 40, he lives in the Kalispell area, enjoying an upper-middle-class lifestyle. He’s got a nice house with a few acres and a view of Glacier National Park. He’s got lots of toys: a fancy pickup and a camp trailer, a wave runner and a four-wheeler, a Harley Davidson motorcycle and a couple of restored Dodge muscle cars, nice ones, the kind that win ribbons at car shows. It’s all paid for, he said, and he has a comfortable guaranteed income. All that results from a $3.5 million legal settlement paid by the state of Montana, the biggest the state ever paid in a civil rights suit, except in cases where somebody died. He’s got a new partner, Kathy Wilburn, and they’ve got a new daughter, RaeAnne, who lights up his eyes, makes his world bigger. “I’m basically retired at 40,” he said, postholing through rotting snow to show off the muscle cars in his garage. “I got that whole Mopar thing going on,” he said. He likes turning wrenches, riding his four-wheeler, walking at night when the stars are out. He’s got buddies to hang with.

He tips a few beers at a sports bar in town. He likes to camp. He’s big on old time rock-n-roll and his digital camera. Still, it took awhile to get used to having money, after earning 25 cents an hour in prison. He said he wasted $10,000 or $20,000 on stuff he later decided he didn’t like, and just threw away. “I had to learn to slow down,” he said, his cigarette habit audible in his frequent laughter. He’s surprisingly genial, considering all the beatings he’s taken, the injustice, the stink of child rape that followed him for so many years. “I do have to work to stay calm sometimes,” he said. “I had to install a switch in my system. I don’t like to get angry, because I go right back to prison mentality, and that’s what gets you in jail.” The settlement money brought him his toys and a home for his new daughter, but it didn’t just fall in his lap. He didn’t go to court until a couple years after he left prison. He said he did so only because he wearied of being “screwed” by the state: the $100 in gate money, the lack of any major apology. Judge Baugh had offered regrets but it was a “halfhearted, reading the script kind of apology,” Bromgard said. Mike McGrath, who was attorney general in 2002, and is now chief justice of the Montana Supreme Court, didn’t do much better. “Our sympathy and concern go out to Jimmy

Ray Bromgard and his family,” McGrath wrote in a newspaper column a few days after Bromgard’s release. Then he talked mostly about how the state crime lab is doing a better job these days. But the biggest post-prison insult, Bromgard said, came when he tried to take advantage of a 2003 state law that offers free college tuition to the wrongfully convicted. The law is on the books, but the Legislature never funded the program. Bromgard didn’t learn that until he’d already enrolled at MSU-Billings, hoping to build a career in architecture or engineering, something along those lines. The only job he could find at the time was delivering newspapers, in the middle of the night, at $7 an hour. The bizarre schedule made his grades suffer and Bromgard dropped out to find a better job, eventually landing one climbing 200-foot ladders to pressure wash and paint water towers. It was fun for a while, traveling the country, but the job grew old, and the broken promises rankled. So in 2004 he sued the state of Montana and Yellowstone County. Four years later, he settled with Montana for $3.5 million. A federal judge ruled against him in 2008 in his case against Yellowstone County, which had offered a settlement he didn’t accept. The judge decided the wrongful conviction was the state’s responsibility alone. But an appeal now rests before the Ninth Circuit Court of Appeals in San Francisco. It seeks $13.5 million. “It’s partly about the money, sure,” he said. “But I want the public to know. So everybody knows these guys aren’t always telling the truth. They have to pay for what Jimmy Ray Bromgard holds his 3-week-old daughter, RaeAnne, at his home near Kalispell. Above, Bromgard and his girlfriend, Kathy Wilburn, share an upper-middle-class lifestyle and a happy outlook on the future. 11

they did. There’s a lot of stuff I missed out on between 18 and 33: college, a career, having kids at a fairly young age. Somebody needs to get their little hands slapped.” As a kid, Bromgard believed in the system. He’d had scrapes with the law: fighting, drinking, a joyride in a stolen car. It was enough to earn him a stint in reform school in Miles City. He sees no injustice in that, he said. “I got caught,” he said. “I pleaded guilty.” Then the legal system fouled itself, sentencing Bromgard to 40 years in prison for a crime he did not commit. He remembers the trial. He remembers trusting his lawyer, John Adams, to do his job. “I was just a kid waiting to go home,” he said. “I always believed what they told you, that you were innocent until proven guilty.”

BAD DEFENSE AND BOGUS EVIDENCE

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romgard told everybody he didn’t commit the rape. He told the cops, he told his lawyer, he told the jury. Nobody believed him. Maybe his lawyer. But if John Adams, who has since died, had much faith in his client, he didn’t display it in court. Bromgard said the first time he met his lawyer, the older man told him to plead guilty and try for a deal, according to court documents. He refused. It wasn’t true. He didn’t attack that little girl. Adams, a public defender in Billings who worked for a monthly wage, didn’t give an opening statement. He did very little investigation. He called few witnesses. He didn’t prepare a closing statement, and he failed to file the paperwork on time for Bromgard’s appeal. And he didn’t do much to challenge Arnold Melnikoff, then the chief of Montana’s state crime lab. And Melnikoff’s testimony proved critical to the prosecution, even if it was wrong. Bromgard’s real troubles started when he was already in jail. Though still a high school student in Billings, he was sitting out a fine on an assault charge, when police asked him to stand in a lineup. He didn’t know it at the time, but an 8-year-old girl was on the other side of the glass. She picked Bromgard, saying she was 65 percent certain he was the man who had broken into her “I’m basically retired at 40,” Bromgard says after winning $3.5 million from the state of Montana for the 15 years and change he spent in the Montana prison system for a crime he did not commit. 12

Billings home and raped her orally, vaginally and anally on March 20, 1987. “I went back to the cell and never heard anything about it,” Bromgard said. A few days later, his mother paid off the rest of his fine, and Bromgard went home, a skinny kid, maybe 135 pounds. Then, one day in June, he came out of the house and “whoa, there were cops everywhere.” He wouldn’t see a free day for more than 15 years. The trial lasted four days. The little girl testified that she wasn’t too certain it was Bromgard who attacked her in her own bed. But Melnikoff clinched the case. He analyzed head and pubic hairs found in the girl’s bed and testified that there was a one-in10,000 chance of the rapist being anybody but Bromgard. The jury stayed out for about an hour, then came back with a guilty verdict. Years later, the foreman told the Billings Gazette that he “encouraged his fellow jurors to discuss the case for at least a short time before announcing their decision.” “When they read the verdict I was just stunned,” Bromgard said. A week or so later, Judge Baugh passed sentence. It was the day after Bromgard’s 19th birthday. “I find rehabilitation unlikely,” Baugh said, citing Bromgard’s lack of remorse. As we know now, he was innocent. Remorse? But the lame defense was only part of the problem. Melnikoff had no basis for his assertions of such certainty regarding the hair samples. “We were all just flabbergasted, stunned,” Walter Rowe, a professor of forensic science at George Washington University

in Washington D.C., told the Gazette in 2002, after examining Melnikoff’s testimony on Bromgard’s behalf. “We’ve never seen anybody make that kind of statement. I don’t know of any scientific literature that says you can do that.” It later came out in sworn depositions that nobody was supervising public defenders in Yellowstone County, not the county commissioners, not the judges who heard their cases. “Everybody ended up pointing at everybody else,” said Ron Waterman, the Helena attorney who represents Bromgard in his civil suit.

Bromgard keeps himself busy working on what he calls his toys — four-wheelers, a motorcycle and a couple of collector cars like this 1969 Dodge Coronet Bee clone.

The crime lab was meant to be objective and rely on scientific analysis, according to Waterman. “But they moved over the line and became aligned with the prosecutors,” he said. Melnikoff was supposed to be an independent investigator but “he forgot what he was supposed to be.” Melnikoff couldn’t be located for this story. But he told reporters in 2002 that he did his best in the case. “I did the best I could with the technology that was available at the time,” he told the Gazette. “I’m really quite disturbed that this person is really innocent.” He might have been disturbed, but he never said he was sorry. “He’s never offered any apologies,” Waterman said. None of this information — the sloppy defense, the shoddy science — came out until Bromgard had spent 15 years in prison. Then it provided the muscle in his civil case, the one that paid him and his lawyers $3.5 million so far. Bromgard figures he earned it.

ONE STEP ABOVE A RAT

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n prison, “the only thing lower than a child molester is a rat,” Bromgard said. He learned that lesson fast. On his third day at Montana State Prison in Deer Lodge, another inmate broke his jaw. And the beatings continued, almost on a daily basis. He had to watch his back constantly and rarely left the relative haven of his cell. He imposed rules on himself, to stay alive. He didn’t go to the gym. He avoided the recreation yard. “I stayed in my cell. I stayed at the back of the line when we were walking to and from the chow hall. If I go to the gym and I’ve got to take a piss, somebody is going to kick my ass in the bathroom. “If you were a rat or a child molester you were pretty much open game for anybody that wakes up in a bad mood, just wants to go break something or beat somebody up.” The guards didn’t help much. “They know who the people are, too. So back then, they’d leave the room so you could get your ass kicked. They would turn their back on things because I was a child molester and that’s what I deserved.” For awhile, he kept a blade fashioned from a squeegee hidden in his television. “It made me feel better that I had it,” he said. “But I know I wasn’t stupid enough to actually try to use it and then get beat up or worse. Or maybe get it used on me.” When guards found the knife, a judge added five years to his sentence. (He was credited for that time when he was exonerated on the rape charges.) He had the shank, he said, “because I didn’t know how to fight back then. I was still a little skinny kid.” Prison fights aren’t boxing matches. “It’s pulling hair, gouging, ears bitten off. Pretty much everything counts. If you’ve got to grab them by their sack and squeeze it and make them hurt, and then stomp them, well…. If you’ve got to hit them first with something, behind the head, before they kick your ass, that works, too.” He broke rules on purpose at times, preferring the relative safety of the maximum security wing to the hazards of the general population. In maximum, he shadow boxed and did pushups. “In the first five years, I got in several hundred fights,” he said. But most of them were “ass whuppings.” Only later did they become fights, instead of beatings. “You learn how to protect yourself. You learn how to hit back.” And you learn how to gain respect. One con in particular began “bulldogging” him, particularly 13

on canteen days, when inmates can buy things at a prison store. He wanted Bromgard to spend all his money buying treats for him. It was that or take another beating. But an older con told Bromgard how to deal with it. And he took the advice. One morning, after the cell doors were opened, and the bulldogger was still in bed, “I went and got a mop wringer and beat the hell out of him.” The bulldogger went to the infirmary and the other cons had something to think about. “I started getting a little respect. You had to earn every bit of it. People were still talking bad about me but there were less people wanting to come fight me because they were wondering if I’m gonna come in there when they’re sleeping.”

“If you’re big and you’ve got tattoos, you’ve just got to bark a little bit to make them all run away. I had to fight a lot less, just because of my size and the tattoos.” The hours in the gym eventually put 80 pounds on him, much of it in the shoulders and arms. He could bench press 315 pounds. His release date was 2027, plus five years for the shank charge. He knew he could boost his chances for parole if he took sex offender courses, but he refused because the first step in those courses is admitting your guilt. “I knew I was innocent, but I knew there really wasn’t a lot I could do about it. You just have to accept it. I actually never planned on getting out. I didn’t think I would.” And, in the eyes of the prison system, he would always be a child rapist. “I had respect, but I was still a child molester,” he said. “And that’s just the way the game goes. Like in Monopoly, you have to move around the board in this direction. You can’t reverse the game and start moving the other way just because you feel like it.”

INNOCENCE PROJECT

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Lawyer Ron Waterman represents Bromgard.

The incident granted him a little breathing room. He was able to hit the gym, pump iron, put some muscle on his scrawny frame. “I showed that I wasn’t a punk. I wasn’t going to let anybody bulldog me. And I showed that I wasn’t a rat. As many times as I got beat up, I never told anybody.” The lessons were tough, but vital. “It was a survival thing,” he said. “You learn a lot of stuff that you really shouldn’t have to learn. I didn’t know how to do time at first. I didn’t know how to be a convict.” He suffered from bad acne as a teenager, and he says today that’s probably why the sexual predators in prison didn’t come after him. “I wasn’t a pretty boy. So I was okay.” As he bulked up, he started gathering the tattoos that now cover much of his body. Inmates made tattoo needles from staples pulled from matchbooks, maybe a guitar string. They brewed ink from the soot of burned plastic, pencil lead, shampoo and cigarette ashes. 14

im Bromgard’s luck began to turn in a private prison

in Texas, when he learned about the Innocence Project on TV. He called Bill Hooks, the Helena lawyer who had been appointed to his case after John Adams flubbed it, but had been unable to overturn the conviction. Hooks put him in touch with the New York City offices of the Innocence Project, which exists to clear the names of the wrongly convicted. That was in 2000. And still, things moved slowly. Bromgard sent a request for help, and a project staffer called back, telling him, “Don’t call us. We’ll call you.” That’s because the non-profit Innocence Project, founded in 1992, handles hundreds of requests a month. It only accepts post-conviction appeal cases in which “DNA testing can yield conclusive proof of innocence.” And that’s complicated and time consuming. In many cases, evidence is destroyed after appeals have been exhausted. Sometimes, the evidence is lost or tainted. “They had to find the DNA first,” Bromgard said. “So I still didn’t really have my hopes up. I had learned from doing time that you hope for the best but expect the worst.” But Bromgard got lucky again. For some reason, the little girl’s underwear, stained with semen, was still in the basement of the Yellowstone County Courthouse. Students working with the Innocence Project found the garment. “It’s simply phenomenal that they didn’t clean house,” Waterman said of the Yellowstone County officials. Bromgard was the 111th person to be thus exonerated by the Innocence Project. Since then, more than 100 have been cleared. There have been two similar cases in Montana: Chester Bauer, who was convicted of raping a woman at knife point in

1983 and was cleared in 1991, and Paul Kordonowy, who was convicted of a 1987 rape and exonerated in 2003. In both of those cases, faulty laboratory testimony aided in the convictions, according to the Innocence Project. But in both of those cases, the men remain in jail because of convictions on unrelated rape charges. In Montana, only Jim Bromgard has been set free because of the Innocence Project. Some say there could be others. Melnikoff analyzed hundreds of cases during his 19 years at the crime lab. As attorney general, McGrath performed an audit of those cases in the wake of Bromgard’s exoneration, and found that Melnikoff generated a report in 244 cases. Of those, he made hair associations in 118 and testified in 19, aiding in 12 convictions, including nine felonies. Eight of those felony convictions were appealed to the Montana Supreme Court, but none of them raised issues about the integrity of Melnikoff’s work, McGrath said in 2004. “As far as I’m concerned, we’re done,” he said. Melnikoff was done, too. He left Montana in 1989 to work for the state of Washington’s forensic lab. In 2003, an internal audit found flaws in 30 percent of the Melnikoff cases it examined, and Melnikoff was fired. McGrath’s internal report satisfied neither the Innocence Project nor a number of Montana lawyers, including four former Supreme Court Justices, who asked the Montana Supreme Court to force a more thorough review. Given Melnikoff’s record, and his position as head of the Montana lab, they wanted to know what other mistakes might have been made. They wanted to know if there were other Jim Bromgards in prison. In 2004, the court ruled 4-3 that it lacked the authority to order such an investigation, but said it held “no view on the serious matters asserted in the petition.” Late in 2008, the Innocence Project opened a Montana office in Missoula. “We don’t think the review done to date is adequate,” said Jessie McQuillan, the executive director of the Montana office. Working with journalists and lawyers, the Montana office is pursuing all angles, hoping for a further review of the Melnikoff cases. “We’re working on it, but we’re in the early stages of our review,” she said.

pretty busy. He likes to go see the river, go see the lake. “There’s a lot of stuff to do,” he said. “Just go outside.” He focuses on the positive. “I don’t know what the reason is that I lost half my life,” he said. “But I’m retired at 40.” He’s got a dog and a couple cats. He’s hoping that Kathy’s three older daughters will be able to move in with them soon, filling their big house. He’s a little frustrated at the amount of complaining that he sees, the hurry-up attitude, the senseless hassles, the problems people make for themselves. “Sometimes life sucks,” he said. “But you’ve just got to deal with it.”

“I knew I was innocent, but I knew there really wasn’t a lot I could do about it.

You just have to accept it. I actually never planned on getting out. I didn’t think I would.”

INJUSTICE DOUBLED

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or fi ve years after he was released from prison, Jim

Bromgard did everything from delivering newspapers to hanging sheetrock to washing dishes. Today, while he no longer has to work for wages, he says he stays

Prison is a school nobody wants to attend, but it gave him a perspective many might envy. “Actually, nothing is really that hard out here,” he said. “People make life a lot harder than it is.” When he first got out of prison, he had to relearn how to use metal silverware. But within a year, he was teaching people how to use a computer. He says he’s in a good place now: new baby, friends, toys, money, nice house. He’s having fun. But he had a lot of catching up to do. Those 15 years are gone forever. And he isn’t the only party who has been wronged. Somebody brutalized that little girl back in 1987. Nobody started looking for him until 15 years later, when the Innocence Project proved Bromgard’s innocence, when the trail was cold and overgrown. Montana’s justice system failed Bromgard. But it failed that little girl, too. It left her rapist on the streets. 15