Saying that defense counsel had “been strategic, tactical, calculated, consistent and considered in implementing the defense trial strategy” of mismanaging time, Lincoln County District Judge Matthew J. Cuffe on Friday declared a mistrial on the ninth and final day of the trial of Kip Hartman, 35, Bonners Ferry.
Hartman faced nine felonies allegedly committed as a result of his work as a financial advisor in Troy and Libby between January 1, 2015, and May 1, 2019; conducting insurance transactions without a license, transacting business as an investment advisor without a license, securities fraud, four counts of exploitation of an elderly person, tampering with witnesses and informants and deceptive practices.
Each count carried a maximum sentence of ten years in prison and/or fine of up to $50,000.
In his order regarding mistrial, Cuffe wrote of concerning behavior on the part of defense counsel Shandor Badaruddin of the law firm Moriarity & Badaruddin, Missoula.
So egregious were defense counsel’s delays, Cuffe noted clearly that his conduct was the cause of the mistrial, denying his client the ability to exercise his right to testify on his own behalf, that he ordered Badaruddin to pay the costs incurred for the conduct of the trial, to include rental costs of the Libby Memorial Events Center where the trial was held to meet COVID-19 social distancing requirements.
“He spent inordinate amounts of time on issues that were not in dispute with some witnesses,” Cuff wrote. “He repeatedly misidentified exhibits to witnesses, struggled to find exhibits and often had electronic versions of exhibits which required he walk his computer around the courtroom to show the exhibits to opposing counsel and then the witnesses in an effort to refresh recollection or lay foundation. What was concerning to the court was not that these things happened, but rather with the consistency that they happened. Every witness had some version of these elements that elongated testimony.”
And that was during the initial portion of the trial, when the prosecution put forth its case.
“It became even more noticeable when Defendant began his case,” Cuffe found.
Initially, the joint prosecution team with attorneys from the Commissioner of Securities and Insurance and Lincoln County Attorney Marcia Boris, was given 10 hours in which to present its case and Badruddin 14 to put forth his defense.
By day four, Cuffe wrote, he was concerned about time. At the close of business on the eight day, the court advised Badaruddin there was but 15 minutes remaining of the defendant’s allotted time left. Badruddin advised his client would need considerably more and cited case law that established the defendant’s right to as long as necessary, and that his own mismanagement of time allotted should not affect Hartman’s right to as much time as needed to defend himself.
That time, he estimated, would be at least three hours.
On the morning of day nine, Badaruddin reminded the court of its duty to protect a defendant’s rights, even in the face of ineffective council. The state did not take a position on the merits of the defense argument, but requested that any addition time granted the defendant likewise be granted the state.
“I have no choice but to declare a mistrial, Cuffe wrote, noting that with jury trials and hearings already filling the docket in the days ahead, it would be impossible to complete the trial. “These are trials and hearings for criminal defendants, some incarcerated, who all have constitutional rights that must be protected,” Cuffe wrote. “Simply put, this court does not have an additional day or two to put on this case. Moreover, it is not in the interests of justice to have a jury sit waiting for weeks and weeks before returning to complete the last two days of trial.”
Hearing the decision, including that he would be responsible all trial costs incurred, Badaruddin said he could present the defendant’s redirect in 90 minutes and requested the judge reconsider.
“This order is agreeing with what you told me yesterday,” Cuffe responded. “I don’t think it appropriate for me to reconsider, and I’m not going to … I do not believe, based on what is presented to me, that I can do anything else and serve the interest of justice.”
In the wake of the mistrial, prosecutors have not indicated whether they will seek to refile the charges.
“We are proud of our team who performed professionally and diligently,” Lincoln County Attorney Marcia Boris and Commissioner of Securities and Insurance Troy Downing wrote in a joint release issued Saturday. “We believe the order speaks for itself. Our offices will continue to vigorously advocate to protect Montanans.”
A call to Badaruddin for comment was not returned.