Unusual court records give rise to 'misconduct' in custody case, lawyers say – Daily Montanan

A missing audio file and an unusual court document raise concerns that justice is being undermined in Judge Deborah Kim Christopher's Lake County District Court.

A new court document filed last week with the Montana Supreme Court details irregularities in proceedings related to a child custody case and said the filing raises serious concerns about “misconduct.”

In an unusual development for a child custody case, some attorneys previously asked the Montana Supreme Court to strip Christopher of emergency control of the case.

Both attorneys said the case represents one of the most egregious miscarriages of justice they have seen in their respective 25 years as lawyers.

In a brief phone call Monday, Christopher, who was first elected as a Lake County judge in 2000, said she couldn't say much about the case but said public records should shed light on it.

“There should be a pretty solid balance sheet,” Christopher said.

The judge also said cases can be unpredictable when courts deal with individual parties not represented by attorneys or when they are pro se.

“There is never anything typical about a pro se trial or hearing,” Christopher said.

In a hearing in September, Christopher ordered, against every suggestion from both parents, that a five-year-old child be immediately taken away from the mother who had raised him and placed in the care of his father, who lives in Oregon and had only visited the child four days a year.

The plaintiff's lawyers described the spontaneous transfer as a “draconian transition.” They previously alleged “gross negligence” in asking the Montana Supreme Court to strip Christopher of emergency control of the case.

In her own court filing, Christopher admitted she was emotional about the case, but also said she course-corrected after taking time to think about a parenting plan she devised. Additionally, she said the mother unfairly manipulated the father in the case.

In an interview, the judge reiterated that she regularly takes a step back in “hotly contested” cases and did so in this case. In her court filing, Christopher noted that the Supreme Court asked her for an answer on October 26. On October 28, she reviewed her prepared parenting plan and finalized it “with a more judicial temperament.”

Late last week, lawyers called on the Supreme Court to appoint a new judge, refer the matter to a disciplinary advisor and also schedule a hearing, citing “misconduct.”

“Plaintiff respectfully requests that this Court … order that all parties and court personnel appear before this Honorable Court at a show hearing to explain and determine whether anyone is attempting to subvert or manipulate the justice system,” the plaintiff’s attorneys wrote .

The plaintiff is Shanna ManyWounds of Elmo, mother of the 5-year-old child.

ManyWounds is represented by Spencer MacDonald of MacDonald Law Firm and Lance Jasper of Reep, Bell and Jasper, who are also petitioning the Supreme Court to return the child to his mother.

The court document filed late last week said ManyWounds still hasn't had a chance to speak with her child since the Sept. 11 hearing.

The document also describes oddities in court proceedings.

First, the lawyers discuss a document that appears to have been emailed by the “defendant” or the father, but was not signed by him or anyone else. The document does not appear to have been written by the father, said the lawyers, who compared it to a separate handwritten court filing signed by the father.

According to court documents, the unsigned document appeared in MacDonald's email inbox on Nov. 13. It discusses the case, including the timeline of events leading up to the hearing, visitation history, and the steps the father has taken to be a supportive parent.

Several things are notable about the document, ManyWounds' lawyers said in their court filing.

This included the use of initials for the child, which were required by law but likely unknown to the father, Jonathan Whyte, who was representing himself at the time, the lawyers wrote. This also includes the writing style of the document, according to the lawyers.

“It is also written in a manner consistent with the district court record … and, compared to his motion for an extension of time, is unlikely to have been written by defendant Whyte,” the attorneys wrote.

In comparison, the father filled out the form for the extension of time limit by hand; It was dated November 16 and does not refer to the previously emailed, unsigned document.

In a brief phone call Monday, Christopher said she had not helped the father with the paperwork and she said it was inappropriate for her to do so: “We are legally barred from doing that.”

Whyte did not respond to an email to an address listed in the pleading regarding the unsigned document.

After Whyte submitted the handwritten document he signed and another document, he hired an attorney, David Diacon of Hrafn Law of Lolo, on Nov. 23, according to court records. In a phone call Monday, Diacon said he would not comment on active cases.

Pointing out another irregularity, the lawyers also said that a recording of the hearing – in which the judge ordered the child to be taken away from his mother and sent to his father to build up the child's “stress muscles” – had disappeared.

On Nov. 10, Jasper asked the court reporter if she had an audio recording of the hearing and she replied that she did, according to court documents. However, Jasper also questioned why a transcript of the hearing appeared to be incomplete and inconclusive.

Missoula attorneys became involved in the case after the hearing.

“The attorney was advised that the judge had instructed her to stop the recording as it was no longer needed and to go home,” the court document said. “In addition, when asked whether the district court acted in confidence at times during the hearing and whether she did so when she instructed (the court reporter) to close the record, she answered “yes.”

“The horrific acts that took place after the district court fired the court reporter should have been included in the record since the hearing was ongoing, as the record shows.”

“Instead, Judge Christopher intentionally terminated the record to protect herself from judicial review by this court.”

In a phone call, Christopher said that when she finished the recording, the decision she made at the hearing was already apparent.

“I think it's pretty clear at the end of the hearing that the child would be transferred from mom to dad,” Christopher said.

She said that all that remained was the actual exchange, which took place under the supervision of law enforcement authorities: “So nothing other than what I had already ordered happened there.”

As for the silence during the hearing, Christopher said she gave herself and the court reporter a break to go to the bathroom and get water. In such cases, she said, she takes a short break until a certain time.

“When I say we’re adjourned, we’re adjourned,” Christopher said. “And in this case, all that happened after our adjournment was the exchange of the child.”

In an email, MacDonald, who represents the mother, said the recording should not have been stopped when the child arrived in court.

“This was a traumatic experience for him and we have no record of it – just witness statements,” MacDonald said. “The court was aware that it would be traumatic for him and it was wrong to deliberately conceal it.”

Jasper said turning off the tape before the end of a hearing violates the client's ability to have a recording of the proceedings for the court to review.

In a phone call, retired District Judge James Manley said courts handle administrative matters such as scheduling confidentially. He said it would not be unreasonable for this to happen for reasons unrelated to a trial, hearing or the taking of evidence or testimony.

Manley said circumstances would determine whether it was appropriate to remain confidential. Lawyers who disagree should therefore explain their reasons, as this is not automatically inappropriate.

Another irregularity also appears in the court record. When Jasper asked his paralegal to contact the court reporter and purchase a copy of the audio recording, she was told the audio file had disappeared, the court document said.

“This occurred just hours after counsel and plaintiff were told it existed,” the court filing said.

However, on Monday, a new court filing from Diacon on behalf of Whyte said ManyWounds is attempting to improperly provide the court with additional information beyond the matter before it.

The document also alleges that ManyWounds is attempting to circumvent the investigative procedures of the Judicial Standards Commission and the Office of Disciplinary Counsel.

“ManyWounds is wrongfully attempting to extend this process beyond the parenting order and the alleged emergency surrounding her child,” the court filing states.