October 20, 2016
Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter
The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:
In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.
Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.
Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....
In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.
The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”
In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.
The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”
For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”
McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...
McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.
October 20, 2016 at 08:56 AM | Permalink
So he is identified in this article as a "monster". Of course the remaining question is what message does that give the child pornography viewers and downloaders who have never inappropriately touched a minor, or molested a minor who routinely get sentences of 5 years or longer?
Posted by: tommyc | Oct 20, 2016 9:28:14 AM
Repeated violent contact sex abuse, rape of a child= slap on the wrist 6o day sentence, 30 yr suspended sentence and life on the registry.
A one-time,non-contact viewing of CP on the internet= 5-10 in prison and 15-life on the registry.
How ridiculous our justice system is!
Posted by: kat | Oct 20, 2016 10:26:26 AM
I'm concerned about the reference to no one speaking for the victim. It is quite possible that members of the family are somewhat in denial regarding the harm to the child or the appropriate nature of the rapist here not getting prison time etc. Protective services of some sort surely are involved but an independent voice would be appropriate for sentencing purposes. And, there are various types of limited detention, such at home or weekends or something that could be a middle way here. It's hard to truly judge these things without an in depth study of the details, but can see the concern.
Posted by: Joe | Oct 20, 2016 10:55:09 AM
So the prosecutor is now complaining to the media that no one spoke up for the victim? Really? Has he no shame? It's cowardly and dishonest for a prosecutor to blame a judge for not considering evidence the prosecutor failed to present.
Posted by: Stephen Hardwick | Oct 20, 2016 12:16:58 PM
Here is the code for Montana's GAL...
So the question not answered by the DA is whether the court refused to appoint a GAL or whether the DA failed to request one. My guess is that the DA failed to request one, got burned, and now wants to blame the judge.
Posted by: Daniel | Oct 20, 2016 12:44:47 PM
I think the judge would have a duty to make sure an advocate was there for the child, in part to fully inform him regarding a proper sentence? This is basically the argument on the petition -- it cites statutory requirements and holds the judge failed them.
The GAL link says this: "The court may appoint a guardian ad litem to represent the interests of a minor dependent child with respect to the child's support, parenting, and parental contact." If it applies, it says "the court may," not only on the request of the prosecutor. So, I would not only lay blame on one party. If blame is required. It would be helpful if the coverage addressed this aspect more.
The articles by the way note the prosecutor upset but saying he accepts the decision. I wonder if the petition made the prosecutor somewhat change his tune.
Posted by: Joe | Oct 20, 2016 1:14:41 PM
Judges don't often act on their own. They generally rely on the lawyers for the litigants to raise issues. That's part of judicial restrain. And even if the judge could have appointed a GAL to represent the child on his own (or found another way to let the victim speak), the prosecutor is still cowardly and dishonest for criticizing the judge for failing to do something the prosecutor never bothered asking the judge to do.
I also don't know whether GAL's are ever involved in Montana criminal cases. I'm not from Montana, but I have never seen a GAL appointed to represent a victim in any of my sex offense appeals. Never. The prosecutor's victims' services office tends to take care of things like that. Even if a GAL could theoretically have been appointed, if it's never done in practice, then this judge and prosecutor weren't doing anything abnormal, especially if no one previously raised the general issue. (And, again, the prosecutor would still be wrong here for criticizing the judge for an the prosecutor never raised.)
Posted by: Stephen Hardwick | Oct 20, 2016 1:34:51 PM
I did wonder if the GAL process applies but "often" means "sometimes" & this isn't a run of the mill case with everything considered. We don't know the full story here so I'm not going to call him "cowardly" just yet, putting aside that the coverage at first had a statement where he didn't bring it up. I think the petition and negative response in general might have led the prosecutor to change his tune. Don't know though. Anyway, bottom line, I care more about bring in such a voice if there was an opening.
Posted by: Joe | Oct 20, 2016 4:45:33 PM
If the prosecutor failed to ask the court for a GAL he may have violated the Montana Code of Professional Conduct 1.14.
Here is the relevant text. "(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of MINORITY, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian."
So how in good faith can he complain? He has now admitted that the child was not adequately represented yet it was his ethical duty under the code of professional conduct to ensure such representation.
Now there may be some wiggle room here for him legally insofar as the prosecutor can claim that the victim is not his client, the state is. So he has no duty to her. But given that he is the one doing the crying he looks cynical at best if he makes such a claim. The Code of Conduct clearly places the onus on the lawyer.
Posted by: Daniel | Oct 20, 2016 5:23:23 PM
The GAL section cited is in the divorce/child custody/support section of the code. If Daniel wants to argue that it could have applied to this criminal case, he needs to show his work. And there's no way an ethical standard about clients would apply for a prosecutor towards a victim.
I stand by my point. Unless the prosecutor tried to get the victim's statement in and was thwarted by the judge, the prosecutor is dishonest and a coward for blaming the judge.
Posted by: Stephen Hardwick | Oct 20, 2016 9:03:28 PM
We are on the same side here, I'm not attacking the judge. As for whether the GAL can be appointed in a criminal case in Montana I don't know; I'm not from Montana. I do know it can be done in some other states. Once upon a time it was actually mandatory under federal law for states to appoint a GAL in such circumstances but so many states violated it routinely that they repealed that part of the law.
I do, however, take exception to one point you make. You write, "And there's no way an ethical standard about clients would apply for a prosecutor towards a victim." Why would it not apply? It a standard of conduct for lawyers and a prosecutor is a lawyer. Why should there be one ethical standard for prosecutors and another ethical standard for anybody else? That makes no /ethical/ sense. I do take the point that a victim is not the same thing as a client but I'm not persuaded that as an ethical matter that this distinction is worth much. The prosecutor certainly has some ethical duty duty to a crime victim as per https://cor.mt.gov/Victims/Victim-Rights so if the crime victim is a minor it makes no sense to abrogate a lawyers ethical duty just because someone is a prosecutor and the other party is a victim. That might follow the strict letter of the code of conduct but it seems manifestly inconsistent with its spirit.
Posted by: Daniel | Oct 21, 2016 3:10:35 PM
“affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.”
The defendant engaged in Multiple acts of incest with his daughter. The "ultimate protection of the victim and society" is best served by a mandatory sentence of 25 years. This judge should not only be impeached; he should be criminally prosecuted.
Posted by: Emily | Oct 22, 2016 9:54:09 AM