By Patrick Winderl/Havre Daily News/pwinderl@havredailynews.com
CHINOOK - Defense attorneys for the man accused of fatally shooting a Blaine County sheriff's deputy last year asked a judge Tuesday to close a hearing about whether some evidence in the case should be suppressed.
Attorneys for Lawrence Dean Jackson Jr. also plan to argue in a separate hearing next month that Montana's death penalty is unconstitutional.
Jackson, 26, is charged with deliberate homicide in the death of deputy Joshua Rutherford and with attempted deliberate homicide in the wounding of deputy Loren Janis.
One of his attorneys, Ed Sheehy of Helena, told District Judge John McKeon that confessions or admissions by Jackson should be excluded from trial because they were obtained in violation of Jackson's Miranda rights.
Sheehy declined to comment later about statements by Jackson that he wants to suppress.
After McKeon tentatively scheduled a suppression hearing for April 13, Sheehy asked him to close the proceeding to the public. He said that if the hearing were open, it would "present a clear and present danger" to Jackson's ability to receive a fair trial.
Sheehy said he was concerned because the Great Falls Tribune is sold in Missoula and coverage of the suppression hearing could taint the potential jury pool. McKeon moved Jackson's trial to Missoula County after the prosecution and defense filed a joint motion saying he would not be able to receive a fair trial in Blaine County.
A reporter for the Havre Daily News told McKeon that the newspaper's attorney would write a brief opposing a closed hearing. The prosecutors, Blaine County Attorney Yvonne Laird and assistant state attorney general Carlo Canty, said they wanted to see Sheehy's motion in writing before deciding whether they would oppose it.
McKeon said he will decide the issue next month.
Peterson and Sheehy previously asked McKeon to close a Dec. 22 omnibus hearing but later withdrew that request. The Havre Daily News filed a brief opposing that closed hearing.
Since Jackson was charged in June, nearly 70 motions, briefs and court orders have been filed in the case. One of the largest issues yet to be decided is whether prosecutors should be allowed to seek the death penalty for Jackson.
Shortly after prosecutors filed a motion in October announcing their intention to seek Jackson's execution, Jackson's attorneys filed a motion asking McKeon to declare Montana's death penalty statutes unconstitutional.
Their 14-page brief said Montana law violates two U.S. Supreme Court rulings "because it is a judge who is to decide whether a defendant receives the death penalty rather than a jury."
Last week, Canty responded with a 33-page brief that said Montana's death penalty statutes comply with the U.S. Supreme Court rulings cited in the defense's motion.
During the hearing Tuesday, McKeon gave the defense until March 4 to file a response. He said he would listen to oral arguments about the death penalty issue on March 22.
McKeon also said the defense needed to put a request for more money in writing before he would consider it. Peterson told McKeon on Tuesday that the forensic expert hired to review physical evidence collected by the prosecution has an hourly rate greater than he expected. He said the defense would need a larger budget to accommodate the $150-an-hour fee the expert charges.
McKeon had previously capped the budget for the expert at $7,000. Peterson said the actual cost will "definitely exceed" that figure.
When McKeon asked if the expert would refuse to continue working if he continued to be paid a lower rate, Peterson said "the implication was that he has sufficient work elsewhere."
Jackson was arrested May 29 shortly after a shooting in a field along U.S. Highway 2 near Harlem. Jackson is accused of wresting Rutherford's service handgun away from the deputy and using it to shoot him once in the chest. According to the charging document, Jackson then turned the gun on Janis, shooting him in the arm.
The 28-year-old Rutherford had been called from his home to respond to a domestic disturbance. The charging document said Rutherford chased Jackson through the field and engaged him in a struggle before being killed.
