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Counts v. Montana Eighth Judicial District Court Cascade County

Supreme Court of Montana

September 11, 2013

BERNARD GENE COUNTS, Petitioner,
v.
MONTANA EIGHTH JUDICIAL DISTRICT COURT CASCADE COUNTY, THE HONORABLE KENNETH R. NEILL, DISTRICT JUDGE, Respondent.

ORDER

Bernard Gene Counts (Counts) has asked this Court to exercise its power of supervisory control over the Eighth Judicial District Court in Cascade County Cause No. CDC-12-191, in which he is charged with three counts of sexual assault. Specifically, Counts asks us to issue an order reversing the District Court's ruling prohibiting defense counsel, witnesses for the defense, or Counts himself from deposing or directly or indirectly questioning the victim or any other witness, or from introducing any other evidence of any kind, regarding the victim's prior sexual conduct in violation of the Rape Shield Statute, § 45-5-511, MCA. Counts contends the court's ruling renders him unable to present a defense of actual innocence and denies his right to a fair trial; he maintains that, as applied here, the Rape Shield Statute is unconstitutional. Counts also asks for leave to proceed with this matter in forma pauperis, and has supported that request with an affidavit of indigency.

Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors make the normal appeal process inadequate, the case involves purely legal questions, and, as Counts alleges here, the trial court is proceeding under a mistake of law causing a gross injustice or constitutional issues of statewide importance are involved. See M. R. App. P. 14(3).

In this case, Counts has failed to convince us that full development of a trial record, followed by the normal appeal process, would be an inadequate remedy. The absence of the first prerequisite for supervisory control renders further consideration unnecessary.

Therefore,

IT IS ORDERED that Counts' request to proceed in forma pauperis is granted and the filing fee for this matter is waived.

IT IS FURTHER ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED.

The Clerk is directed to provide copies of this order to all counsel of record in Cascade County Cause No. CDC-12-191 and to the Honorable Kenneth R. Neill.


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