Judge Slams US Attorney

U.S. Attorney Gets Earful From Judge

May 17, 2006
Billings Gazette (MT)
By Tristan Scott

MISSOULA — In an abrasive court hearing Tuesday, Montana’s chief federal judge reviled U.S. Attorney Bill Mercer, accusing him of federalizing criminal cases arbitrarily and because it’s politically popular.

“Do you ever concern yourself with justice?” Chief U.S. District Judge Don Molloy asked Mercer during a federal court session in Missoula.

The primary focus of Tuesday’s oral arguments involved a federal case charging Chad C. Rothacher, a convicted felon, with possession of firearms.

In 1994, at the age of 19, Rothacher was convicted of mitigated deliberate homicide after a bar fight in Kalispell. Rothacher was sentenced to the Montana State Prison for 16 years with 10 suspended, but was paroled after just more than a year.

In 1997, Rothacher’s parole expired and he began serving his 10-year suspended sentence.

Rothacher has since developed a multimillion-dollar construction business in the Big Sky area and oversees 30 employees. According to his attorney, Jim Goetz, he is recognized in his community as a stalwart and there have been no additional reports of violent behavior.

But on Nov. 11, 2004, more than seven years into Rothacher’s suspended sentence, the Flathead County attorney charged him with violating the court-ordered conditions of his suspended sentence because he owned 12 firearms.

Rothacher is currently under intense supervised probation with the Montana Department of Corrections.

The major point of contention Tuesday was whether it was necessary to prosecute Rothacher a second time under federal laws.

“Why is it necessary for the federal government to come in at this point and pile on an additional federal indictment, particularly on an individual who has admirably built a major business since his release from the Montana State Prison? Surely the federal government must have bigger fish to fry?” Goetz wrote in a brief supporting a motion to dismiss the case. “It is senseless and unfair for the federal government to punish for the same thing.”

Molloy agreed with Goetz, asking Mercer if he had “any respect for Montana and the state’s court system.”

“This is a state case,” Molloy said. “What is the federal interest in prosecuting this case? Clearly this person was rehabilitated. You know what this seems like to me? This seems like a number. This seems like a statistic.”

But Mercer said his office is determined to prosecute violent offenders who are caught in possession of firearms, and that its interest in that brand of prosecution was renewed by Project Safe Neighborhoods, a nationwide program to reduce gun crime that was spawned by the Bush administration.

“It would be unfortunate if the federal government said, ‘We know you are a violent offender, we know you are a felon and we know you have guns, but we’re going to ignore it,’ ” Mercer said.

But Molloy again pointed to the time that has lapsed since Rothacher’s violent crime, his record of good behavior and the punishment that was already meted out by the state.

“Foolish consistency is the hobgoblin of a small mind,” Molloy said, quoting Ralph Waldo Emerson. “Your job is not to get convictions. Your job is to ensure that justice is done. I think that’s just a real problem for you. Blind persistence to a technical claim. You’re not pursuing justice. You’re pursuing statistics.”

In November 2005, Molloy implored U.S. Attorney General Alberto Gonzales to replace Mercer as Montana’s U.S. attorney. In a letter, Molloy said Mercer was violating a residency law and shrugging off his work in Montana while holding a Justice Department job in Washington, D.C.

Mercer maintains a home in Montana but does not live here.

Gonzales disagreed with Molloy, and said Mercer complies with the residency law, which says a person can have two or more residences.

But on Tuesday, Molloy again charged Mercer with neglecting his duties in Montana while on dual assignment.

“Your lawyers are not getting their briefs in on time,” Molloy said. “You’re in Washington, D.C., and you ought to be here in Montana doing your work. Your office is a mess.”

Molloy also criticized the case’s “convoluted history,” noting that Mercer’s office had previously moved to dismiss the case, a motion Molloy granted, but now wishes to re-indict Rothacher.

“I have a very significant concern about how the U.S. attorney’s office has handled this,” Molloy said.

“You have no credibility,” he said. “None.”
Goetz said his client should not have to sit around as federal indictments are dismissed, and then arbitrarily revived.

Molloy must now decide whether to dismiss the case, or to try it before the clock winds down making it impossible to comply with the Speedy Trial Act, which says a case must come to trial within 70 days after a defendant’s first appearance, but that a defendant cannot be forced to go to trial in fewer than 30 days.

Goetz also noted how rare it is for a federal judge to censure an attorney so harshly.

“If I had a federal judge talk to me that way I would seriously consider changing professions,” Goetz said.

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David Finn