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Is this a constitutional rights violation

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Ladyback1

Senior Member
What is the name of your state (only U.S. law)? Montana

16 y/o was cited for a misdemeanor.
Went to Juvenile Probation (which is how the system is in Montana), and "DENIED" the charge (had a choice of "Admit" or "Deny"). 16 y/o claims innocence and wants the matter adjudicated.

When he "denied" to Juvenile Probation, it was sent to the Co. Atty Office. (Co. Atty handles juvenile cases regardless of whether the citation charge stemmed from the city police). Co. Atty Office has so "generously" advised that they aren't going to adjudicate the issue, instead they plan to "hold open" the case for "in the future". I have suspicions as to why the Co. Atty does not want to take this to court, and it is not to do me (or my minor child) any favors.

The "case" at this point is 2 months old.

Does this violate his 6th Amendment rights?
Or am I wrong?

(I do NOT mind being wrong!)

The charge is in regards to MCA 45-8-213. Privacy in communications.
This happened at school.
Per the school a student (not my son) logged into their Facebook account on a school computer, and then did not log out. There were some thinly veiled threats to the school posted on this student's facebook. That student denied posting the threats. The school claims to have investigated thoroughly. The school accused (and punished at school/for violating school policy) my son of being the one to post the threats. The school requested that the school resource officer cite my son. The officer did (obviously) but the officer did no investigation, relying solely on the school's investigation.

My son denies that he was involved.
I know that teenager do really stupid things sometimes. I know that teenagers will lie to protect their ass(ets). My child is no different in doing stupid things, but none have ever rose to this level of stupidity. And while my son has, I'm sure, lied to other people, he has not lied to me. He's tried but always failed miserably! Thus, I am choosing to believe my son.
 


Ohiogal

Queen Bee
What is the name of your state (only U.S. law)? Montana

16 y/o was cited for a misdemeanor.
Went to Juvenile Probation (which is how the system is in Montana), and "DENIED" the charge (had a choice of "Admit" or "Deny"). 16 y/o claims innocence and wants the matter adjudicated.

When he "denied" to Juvenile Probation, it was sent to the Co. Atty Office. (Co. Atty handles juvenile cases regardless of whether the citation charge stemmed from the city police). Co. Atty Office has so "generously" advised that they aren't going to adjudicate the issue, instead they plan to "hold open" the case for "in the future". I have suspicions as to why the Co. Atty does not want to take this to court, and it is not to do me (or my minor child) any favors.

The "case" at this point is 2 months old.

Does this violate his 6th Amendment rights?
Or am I wrong?

(I do NOT mind being wrong!)

The charge is in regards to MCA 45-8-213. Privacy in communications.
This happened at school.
Per the school a student (not my son) logged into their Facebook account on a school computer, and then did not log out. There were some thinly veiled threats to the school posted on this student's facebook. That student denied posting the threats. The school claims to have investigated thoroughly. The school accused (and punished at school/for violating school policy) my son of being the one to post the threats. The school requested that the school resource officer cite my son. The officer did (obviously) but the officer did no investigation, relying solely on the school's investigation.

My son denies that he was involved.
I know that teenager do really stupid things sometimes. I know that teenagers will lie to protect their ass(ets). My child is no different in doing stupid things, but none have ever rose to this level of stupidity. And while my son has, I'm sure, lied to other people, he has not lied to me. He's tried but always failed miserably! Thus, I am choosing to believe my son.
There is no due process violation at this juncture. They can keep it open for a bit of time. They then will encounter speedy trial issues. Was he offered counsel?
 

Ladyback1

Senior Member
There is no due process violation at this juncture. They can keep it open for a bit of time. They then will encounter speedy trial issues. Was he offered counsel?
Nope...
It is kind of a catch 22--we are not able to obtain the case file without an attorney. We can't afford an attorney (amazing what a diagnosis of cancer will do to your bank account!:() Until they make a decision to pursue, they have said he isn't eligible for a public defender.
So around and around we go.

It is frustrating!
It doesn't help that along with this debacle in December, we got the cancer diagnosis (on husband) in December (and treatment was immediate and aggressive), got married Jan. 10--the same day my father had a major heart attack (he's 76 and is over 1600 miles from me) which required triple bypass...I'm pretty well done in at this point.
 

TigerD

Senior Member
Nope...
It is kind of a catch 22--we are not able to obtain the case file without an attorney. We can't afford an attorney (amazing what a diagnosis of cancer will do to your bank account!:() Until they make a decision to pursue, they have said he isn't eligible for a public defender.
So around and around we go.
Who said he isn't eligible for a PD?
Have you filed out an application with the public defender?

TD
 

CdwJava

Senior Member
The matter will have to be headed to court for him to be eligible for a public defender (provided the offense is eligible). It seems the prosecutor has not yet filed the charge, so, the matter is still open.

Nothing prevents you from consulting legal counsel in the meantime in order to be prepared IF they come back and file in a few months.
 

OHRoadwarrior

Senior Member
The prosecutor can decide to not prosecute, then refile the charge up until the statute of limitations. That tactic is often used in murder cases where an arrest is made but the prosecutor does not feel there is enough evidence to sustain a conviction. It allows time for more investigation without tolling the speedy trial issue.
 

single317dad

Senior Member
Ladyback1, you may find this recent opinion from the Montana Supreme Court interesting reading:

https://cases.justia.com/montana/supreme-court/2014-da-13-0560-0.pdf?ts=1404421945

https://cases.justia.com/montana/supreme-court/2014-da-13-0560-0.pdf?ts=1404421945

In Indiana, under TR 4(C) a criminal case must complete in one year from arrest/charge (unless, unless, unless...). Defendants on diversion programs are required to waive 4(C). I don't know Montana's equivalent, but it will be relevant here. There may also be a local rule on timely prosecution.

(C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
 

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