I write this with hesitation, as I try to avoid wading into the dirty waters of election politics, but I believe I must. It distresses me when cases prosecuted by my office, that the people of this great community have trusted me to handle, are manipulated and sensationalized for political gain.
Several weeks ago, a political advertisement sponsored by Club For Growth began airing against former Billings Judge Russ Fagg (who is seeking the Republican nomination to run against incumbent Montana Sen. Jon Tester, a Democrat). The ad sensationalizes the case State v. Matthew Green (DC 13-338). The ad concludes using the case to suggest that Judge Fagg was hard on crime victims and soft on crime.
Here are the relevant facts. In the Green case, the defendant pled guilty to one count of aggravated assault and one count of assault on a minor. The aggravated assault was charged and pled as a count that required the prosecution to prove the element of “the fear of serious bodily injury.”
At sentencing, Judge Fagg followed my office’s recommendation, as well as the recommendation of the Department of Corrections, which was required to investigate the defendant’s background, including his criminal history, family history, work history, substance abuse and mental health history.
Felony cases in Montana require that these investigations be reduced to writing and that judges review them before making a sentencing determination. The defendant was sentenced to 10 years with five years suspended for those counts. Additionally, a drug possession offense was revoked and the suspended portion of that sentence was imposed consecutively to the 10-year sentence.
Judge Fagg signed a written judgment listing the reasons for imposing the sentence, including the facts and circumstances of the offenses as well as the fact that the defendant accepted responsibility for his crimes, thereby avoiding putting the woman and her children through the agony of trial. Judge Fagg also considered the testimony of the woman affected by the defendant’s deplorable actions as she, with unbelievable courage, testified at the sentencing hearing.
The Green case was a serious one; that much the attack ad gets right. So, at the time, I assigned one of my best prosecutors to it. The prosecutor assigned was a go-to authority statewide on domestic violence, violence against women, violence against children, and tough as nails against those offenders in the courtroom.
In fact, after this prosecutor took the case, the original referral and charge of misdemeanor domestic violence was changed and charged as the aggravated assault count that the defendant ultimately pleaded guilty to. I trusted this prosecutor’s evaluation of this case as well as the victim-witness coordinator I assigned to help. I believed the prosecutor’s sentencing recommendation was well thought out, and it included the victim’s input in formulating this recommendation. I stand by the offer my office made in the Green case.
The group that created this attack ad has no idea the effect their clever work has had on the woman and family affected by Green’s crimes. Before deciding to respond, I reached out and spoke to her and told her my thoughts about the ad. I told her I felt I needed to respond. She told me she had seen the ad, and how it was a painful reminder of the past.
This woman, who is valiantly working to repair her life and her family’s life, agreed that I should write something even after I told her that it might bring more attention upon her. She wants it known that she wasn’t consulted, informed, or even warned by Club for Growth that this ad was coming. After speaking with her, it was made clear to me that she does not want to be anyone’s political pawn.
Over the years that I prosecuted cases in front of Judge Fagg, I never considered him soft on crime or insensitive to victims. It was the opposite. Many times I agreed with his judicial decisions, other times I did not. But I respected these decisions because I believed he was doing the best he could to make them based on the information in front of him.
The ad is garbage. Please consider tossing it into the cesspool of politics.
Scott Twito is the Yellowstone County attorney.