Defense urges dismissal after nearly two hours of allegedly intercepted attorney'client calls; state urges narrower remedy

May it please the court: the defense told the Montana Supreme Court on Thursday that state agents and jail staff repeatedly accessed privileged communications involving Sterling Glenn Brown and his lawyers, and asked the justices to dismiss the indictment as the only adequate remedy.

Matt Hayhurst, counsel for petitioner Sterling Brown, said a state-prepared spreadsheet (identified in briefing as Exhibit C) shows 20 telephone calls were listened to and that the total listening time "is 1 hour 56 minutes and 24 seconds." Hayhurst said jail staff also opened at least one attorney letter (Exhibit BB) and that redacted phone-call transcripts in Exhibit X include multiple statements by defense counsel Lance Jasper identifying himself and asking, "Do not record this phone call." Hayhurst argued the scope of interceptions and involvement of members of the investigative or prosecution team trigger a presumption of prejudice and require dismissal under the line of cases the defense relies on.

The defense and amicus also urged the court to consider the Montana Constitution. Ryan Aiken, representing the Montana Association of Criminal Defense Lawyers, told the bench the state's policy to record inmate communications makes it impossible for an incarcerated person to meaningfully consent to monitoring and that dismissal, not suppression, is necessary to vindicate the right to counsel: "dismissal is the only remedy that actually vindicates the rights violated," he said.

State lawyers disputed that conclusion. Roy Brown, Assistant Attorney General, said the district court found violations but also concluded that the record does not show prosecutors used privileged content to gain an unfair advantage. He urged the Supreme Court to affirm the district court's remedy, which suppressed testimony from anyone who accessed the defense communications, arguing that remedy was "appropriately tailored" under United States v. Morrison and similar precedent. Brown noted the recorded calls and transcriptions were provided to the defense and that the district court held a four-day evidentiary hearing and invited the defense to identify calls for in-camera review.

The bench and counsel debated two threshold issues: waiver/consent and whether the constitutional analysis should presume prejudice once attorney-client communications were accessed by state actors. Several justices noted circuit splits over whether presumed prejudice or an actual-prejudice showing should control; the justices questioned whether notice signs, recorded-call advisories, or jail procedures amount to waiver and asked whether the Montana Supreme Court should adopt a state-constitutional standard under Article II, Section 24. Hayhurst urged the justices to interpret the state constitution to offer broader protection than federal decisions.

The record contained disputed factual points that figures into remedy proposals. Counsel discussed that Sheriff Lewis first discovered a call and asked jail staff to block a law-firm number; defense counsel said there were missed opportunities to stop further monitoring. The state responded that jurisdictional and system limits between counties and the jail's contractor constrained which actors could effect blocking and that jail policies included alternative confidential options (a private unrecorded line and kites), which, the state said, the record shows were available though not necessarily used in every instance.

Defense counsel urged the court to scrutinize the role of the lead investigator (Agent Tucker), noting the defense objected to that agent investigating the scope of intrusions; Jenna Lyons, speaking for the defense team, described the situation as a "Pandora's box" and said the breadth of listening ("over an hour and 56 minutes of calls" and "over 60 pages" of letters) and the prosecution-team's access made prejudice impossible to measure without dismissal.

The state reiterated that the district court found witnesses had no substantial recollection of call contents and that there was no record evidence those calls were disclosed to prosecutors in a way that tainted the trial; it urged that suppression and targeted remedies were sufficient. The state said it would not oppose a proper trial-court motion to permit certain witnesses to testify at trial if appropriate.

The court heard argument on whether the Article II, Section 24 point had been preserved below and whether the petition properly raises only remedy rather than novel state-constitutional claims. After further questioning about the record, the court took the case under advisement: counsel were excused and the case was submitted.

The arguments focused on two competing remedial philosophies: the defense's request for dismissal when attorney-client communications are accessed by state actors and the state's argument for a more tailored remedy (suppression and targeted restrictions) absent a showing the prosecution actually used privileged information to prejudice the defense. The justices questioned the proper allocation of burdens, how waiver should be proved, and whether Montana's constitution requires a different result than federal precedent. The case is submitted to the court for decision.