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					Patsy A. Tucker
1270 Creekside Court
Idaho Falls, Idaho 83404
Telephone: (208) 523-8465 (home)/(208) 526-5719 (work)
Pro Se Litigant

TRANSMITTED BY FACSIMILE TO (406) 447-8275
With Original to Be Transmitted by Mail

                         MONTANA FIRST JUDICIAL DISTRICT COURT
                                 LEWIS AND CLARK COUNTY
___________________________________________________________________________________________
PATSY A. TUCKER                            ) CAUSE NO CDV-2007-589
                                           )
             Plaintiff,                    ) Judge: Thomas C. Honzel
       v.                                  )
                                           ) REPLY BRIEF TO
STATE OF MONTANA ex rel,                   ) ATTORNEY GENERAL’S
MIKE MCGRATH, Attorney General,            ) REPLY BRIEF
and JANIE McNAIR aka CLYSTA                )
JANIE McNAIR, resident of Libby, Montana,  )
                                           )
             Defendants.                   )
___________________________________________________________________________________________
       As a pro se litigant, I respectfully submit the following Reply Brief to Defendant Attorney General Mike
McGrath's Reply Brief on behalf of Cady Tucker and the 1.2 million people killed every year worldwide in traffic
collisions.
I. PLEA FOR THE DECENCY OF A HEARING
       I ask the court for the decency of a hearing and for the killer of my only child to be charged with the crime
the killer committed: negligent homicide. My request is for minimal decency. My beautiful daughter’s life was
violently and brutally obliterated and my life was ended on August 15, 2002, because of the deliberate choices of
Co-Defendant Janie McNair, who grossly and obscenely disregarded the consequences of her killing behaviors
tantamount to a time bomb. For Co-Defendant Mike McGrath, the Attorney General for the state of Montana,
to vigorously defend doing nothing when my child was killed and to care not one bit about seeking justice for
her, a totally innocent, sweet, spectacularly talented 11-year-old child with so much good to offer the world, is
despicable, and I beg this court for the decency of a hearing to explain what has never been explained before
any court—and what should be so obvious: why Defendant McNair must be charged criminally.
II. PRIVATE ATTORNEY GENERAL DOCTRINE HAS A LAUDED LEGAL HISTORY.
       The private attorney general doctrine has a lauded history in effecting social change, culminating in Brown
v. Board of Education, 347 U.S. 483 (1954), and in forwarding subsequent human, environmental, consumer, and
civil rights. Co-Defendant Attorney General McGrath’s claim in his December 21, 2007, Reply Brief that the
private attorney general doctrine “only provides an incentive for parties to bring litigation related to the public
interest by allowing attorneys fees in certain instances” is simply wrong and subverts the brilliant, historical
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contribution of the private attorney general doctrine, and it has one intent: to silence my articulation of injustice
at his hands and of those he supervises.
      My daughter’s case yet breathes only because of the private attorney general doctrine. All public attorneys,
including Defendant Attorney General Mike McGrath, who could have acted on behalf of my daughter, Cathryn
Claire Rose Tucker, her dignity, and justice, after she was violently killed on the highway by the grossly unsafe
acts of a driver who knew better, were unmoved to exercise a sliver of their authority. The private attorney
general doctrine rightly recognizes that issues in the public interest and the evolution of justice come from many
sources, and that it serves the public interest to encourage the expression of injustices when they are recognized
by private sources but NOT the public sources. In order to have the public interest served, the highway killing of
my child must be recognized not only as a crime but a severe crime resulting in death. It should be obvious
that the public interest, in this mobile country, in deterring deaths on the highways is boundless—encompassing
every race, every family, every parent, every child, every traveler, every person.
      Drunken killing on the highway was winked at for decades with the killers getting off with impunity, as if
the lives they took were nothing more than an accepted risk of a mobile society. My sister was killed by such a
drunk driver in 1959—who never had to answer for his homicidal act nor even think he committed a crime.
Jurisdictions around the country have come to recognize the insult to the dead and the living with this shameful
injustice. Being drunk is no longer an acceptable alibi for highway killing.
      Some jurisdictions, such as New York, California, Utah, South Dakota, and others, as was explained in my
December 16, 2007, Reply to Defendant’s Motion to Dismiss, have been holding the non-drunk highway killers—
responsible for 66% of highway deaths—accountable on a par with drunk highway killers. In contrast, Montana
is still treating non-drunk highway killers the way drunk highway killers were treated 50 years ago, and unless the
court acts, McNair will never have to be inconvenienced by the notion that she committed ANY crime when she
killed my daughter and ended my life. (See Leonard Evans, Traffic Safety, p. 251.)
      The time is overripe for Montana to finally prosecutorially and judicially acknowledge not only the crime
but the severe crime, with nearly countless frequency, of highway killing. Highway killing of a child and all
others must not be countenanced under any circumstance, but especially in the context of the astronomical public
interest. One shudders to think how high would be the mountain of corpses piled one on top of another at the rate
of 43,000 innocent people killed on U.S. highways each year.
      The Defendant argues that I have no right to be heard by this court. This analysis is so wrong, it strikes at
the very heart of our democracy. I am maximally “aggrieved” by the Attorney General’s “failure to act” and,
therefore, I am entitled to “judicial review,” as the court in Heckler v. Chaney, 470 U.S. 821, 828 [1985]
recognized. I am raising an issue of great injustice affecting every Montanan and everyone. It is absolutely time
for this court and others in Montana, and Montana prosecutors, to recognize the critical importance of holding
highway killers accountable for their killing acts and prosecuting them on behalf of public safety to deter future
highway killing. The private attorney general doctrine recognizes that the private party taking the initiative to ask
to be heard may be doing so because of unbearable, irrepressible injustice, and that addressing such injustice is
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clearly in the public interest. Like the plaintiffs in Brown v. Board of Education, a landmark case under the
private attorney general doctrine, I deserve to have a hearing to state my case that my daughter’s highway killer
should be charged with negligent homicide or an alternative equitable solution should be found. Inasmuch as the
public attorney is running for Chief Justice of the Montana Supreme Court, Mike McGrath, the public attorney
general for the state of Montana, arguably has a private interest—political—in silencing my articulation of a
universal public interest. This court should rule in favor of (1) the broad public interest of holding the guilty
responsible for the crimes they commit—in this case, negligent homicide, (2) deterrence of more highway
killing, and (3) the dignity of and justice for my daughter and other victims like her, and against the Attorney
General’s self-interested Motion to Dismiss.
      The history of the private attorney general doctrine is outlined by Jeremy A. Rabkin in “The Secret Life of
the Private Attorney General Doctrine,” 61 Duke L. Rev. (1998); William Rubenstein in “On What a ‘Private
Attorney General’ Is—And Why It Matters,” in 57 Vand. L. Rev. (2004); Stephen Yeazell in “Brown, the Civil
Rights Movement, and the Silent Litigation Revolution,” 57 Vand. L. Rev. (2004); and others. Rabkin notes that
the term “private attorney general” was coined by New Deal Judge Jerome Frank in a 1943 appellate case to stop,
a government-sanctioned coal cartel from hiking the price of coal and to allow an industry consumer counsel,
Associated Industries, to challenge the hike when the government’s own Consumer Coal Counsel had not done
so. In Associated Industries v. Ickes, 134 F.2d 694 (1943), Judge Frank allowed Associated Industries, as a
private attorney general, to file suit against Harold Ickes, the U.S. Attorney General. Attorneys’ fees were not at
issue in this seminal case.
      The goal of the doctrine, according to Yeazell, is allowing the weak and invisible to hold the powerful
accountable—“a theme as ancient as the Psalms of the Old Testament.” In this type of case, the private attorney
general action allows “the vindication of rights,” typically of the downtrodden, and encourages sending a message
to public officials who can correct the injustices. Rubenstein and Yeazell consider Brown v. Board of Education,
347 U.S. 483 (1954), to be the exemplar of private attorney general doctrine cases. The plaintiffs argued in
Brown that the Equal Protection clause of the 14th Amendment prohibited segregation of schools. Again,
attorneys’ fees were not the issue.
      In 1970, the U.S. Supreme Court extended the approach in Association of Data Processing Service
Organizations v. Camp, 397 U.S. 150 (1970), by ruling that “any person aggrieved” can seek judicial review as a
“private attorney general” on behalf of public interest under the Administrative Procedures Act. Congress
followed suit in the 1970s by creating statutes granting greater watchdog powers to private parties to both
encourage greater enforcement of laws and to check potential abuse specifically by the executive branch.
Environmental protection statutes authorized “any citizen” to enforce environmental protection legislation and
thereby to sue on behalf of the public interest when the government declined to act. (See, e.g., the Clean Water
Act: 33 U.S.C., § 1365(a)(2) [1994] [Water Pollution Control Act].) In 1978, Congress authorized courts to
appoint private attorneys as special prosecutors to investigate wrongdoings by executive branch officials. (See
28 U.S.C. § 49 [1994] [Ethics in Government Act].) This act was borne during the Watergate era to allow the
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appointment of an independent counsel, acting as an alternate attorney general, more politically removed and
without conflicts of interest, to investigate the criminal misconduct of the President.
      The attorneys’ fees to which Defendant refers were designed as an incentive to private parties to be able
to apply the doctrine when they could not otherwise afford to bring a lawsuit to ensure compliance with laws or
to check abuse on behalf of the public interest. Defendant McGrath is more than representing the private attorney
general doctrine in the narrowest of terms, he is revising and diluting its history. The court should question these
actions especially when they are designed to quell exactly what the doctrine is designed to encourage: privately
initiated judicial review of issues in the public interest. Seeking an attempt at prosecuting the undisputed
malfeasor for causing the senseless highway death of my daughter, as a deterrent to more senseless deaths, in
light of 43,000 senseless U.S. highway fatalities (and thousands of injuries) a year is of life-and-death public
interest—particularly in light of Montana having the highest per capita highway fatality rate in the nation for four
of the past five years. (See Fatality Analysis Reporting System website.) It is in the public interest to seek
judicial review of callous inaction and resistance to seeking justice by the Montana Attorney General, who is
the public official responsible for ensuring that prosecutors seek justice on behalf of victims and all Montanans.
      In the case of the killing of my daughter, Cady Tucker, and my action before the court, the doctrine is to
preserve, as with Brown, the highest of principles: Cady’s inviolable right, and that of other victims of vehicular
homicide, to human dignity as protected in Art. II, Section 4, of the Montana Constitution; Equal Protection
and Due Process under the 14th Amendment of the U.S. Constitution and Art. II, Sections 4 and 17, of the
Montana Constitution; and the right to the administration of justice under Art. II, Section 16, of the Montana
Constitution. I also have previously asserted that because Cady was killed in Montana, the Montana Department
of Justice and Missoula County prosecutors have the responsibility, similar to a fiduciary responsibility, of
seeking justice for Cady, and thereby giving her a voice and a role in the evolving journey for justice and
highway safety. (See Committee on Children’s Television, Inc. et al., Plaintiffs and Appellants, v. General Foods
Corporation et al., 35 Cal. 3d 197, 673 P.2d 660 [1983], and State ex rel. Fletcher v. District Court, 859 P.2d
992 [Mont. 1993].)
      The single act of judicial review by this court would prevent the unbearable consequence of Cady dying in
vain, and would transform her death into the role it can and must have: Cady would become a link—even if her
case were dismissed or a jury found McNair not guilty—in a profoundly important area of emerging law for the
public interest: minimal accountability for those found solely responsible for killing others on the highway. Not
only my child but your child or your grandchild or your relative’s child has a higher risk of dying on the highway
than from any other cause of death. (See 2004 Pan American Health Organization publication.)
      This court could help keep Cady’s case, and other children, alive. To fail to receive even a modicum of
justice from Montana for my daughter’s killing is to ask me to be silent and stand by while I witness the ultimate
indignity of my child—her killer walks without so much as having to apologize, as if nothing happened. I
cannot and will not bear that injustice to my child, nor should other parents be expected to do so for their children.
Heckler recognized that the injustice of prosecutorial discretion being exercised by “governmental refusal to act
                                                          4
could have just as devastating an effect upon life, liberty, and the pursuit of happiness as coercive
governmental action.” (Heckler, p. 851) (emphasis added)
      I ask this honorable court to make review of this case a high priority.
III. CADY’S CASE SHOULD BE REVIEWED FOR CHARGING AND PROSECUTING JANIE
MCNAIR FOR NEGLIGENT HOMICIDE.
      Cady’s case should be reviewed for charging and prosecuting Janie Mcnair for negligent homicide. The
Attorney General apparently saw no problem with asserting in his brief that his decision not to exercise
supervisory authority over Missoula County’s failure to prosecute should not be “second guess[ed].” It simply
cannot be in a just society that the rights of the powerful (i.e., the Attorney General) in validating the outrageous
decision of letting Cady’s killer go free without even a mention that she killed Cady on her driving record, would
be favored over the great public interest in highway safety and in holding the guilty responsible for their acts.
      Cady was killed due to McNair’s driving 10 feet left of the center line in the wrong lane of a blind “S”
curve for 70 feet on two-lane Highway 83. McNair likely drove, by her own admission, 70 mph in a
recommended 45 mph no-passing zone when she has only one hand and was required to be driving with a steering
knob. She drove when she failed to even take a blood sugar reading before highway driving when her diabetes
was in the most “terrible control” of her well-documented history of severely out-of-control diabetes. She drove
despite all of this and killed my daughter. As of this date, she has not been charged with anything and no
mention of this is even on her driving record. This is an outrage that must not only be “second-guess[ed]” but
must be rectified, which is at the heart of my appeal. In addition, the Attorney General commits a disservice by
minimizing the role of essential judicial review of behalf of a profound public interest as mere “second-guessing.”
(See MHP Report, 12/4/07 Noose letter, and 8/8/02 medical record.)
      My situation and that of other parents of children and relatives of loved ones senselessly killed on the
highways is like that of blacks before civil rights laws were enacted. Relatives of loved ones killed by reckless
drivers when no alcohol or illegal drugs are used are currently discriminated against under the law. This
discrimination should not be allowed. The reckless driver who kills when not under the influence of alcohol or
drugs is just as reckless as the drunk driver, perhaps even more so—and their victims are just as dead. Drunken
malfeasors would argue that they did not possess the faculty of mind to have the requisite “intent” for the killing
behavior. Similarly, the drunk on the highway used to argue that he lacked the requisite “intent” when he caused
a vehicular homicide. That tack is no longer acceptable today for the drunk driver. However, the non-drunk
whose egregious acts led to his or her highway killing is allowed to go free in Montana when in reality he or she
may have been even more willfully reckless than the drunk. The drunk at least had his judgment impaired
because of excessive alcohol.
      What was the “excuse” for McNair’s steering or veering on the wrong side of a two-lane highway at
highway speeds for 70 feet, or Kautz when he plowed his big truck into a stopped car that he admitted seeing
and killing a two-year-old, or Seivers, who was dead-tired, knew he was dead-tired, drove dead-tired, crossed the
median of Interstate 90, caused a head-on collision while dead-asleep, and killed anyway? Notably, McNair has
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no defense for killing Cady, as she has admitted in a default judgment. It appears that these malfeasors just did
not give enough of a damn to prevent their reckless acts leading to the “substantial certainty” and fact of killing
on the highways. Mont. Code Ann. Sec. 45-2-101(42). Their getting to their destinations quicker—whether
allegedly “dead tired” or allegedly “dead drunk on sugar” or whatever their allegedly lame and selfish excuses
are—was more important to them than preventing the “substantial certainty” of causing an innocent living and
breathing person to be dead forever. Mont. Code Ann. Sec. 45-2-101(42). Then, we survivors are told that “no
crime was committed” and nothing can be done. The Attorney General would allow these highway killings to
continue as an “acceptable risk” of driving—that is unless it was his daughter who was killed. As noted in my
December 16, 2007, brief, Kautz and Seivers were at least charged with negligent homicide, although Judge
Watters dismissed these cases, which had case law to support going to trial, as I argued in my December 16, 2007,
brief. (See 9/30/03 Consent to Default Judgment, 8/9/07 McGrath letter, Montana vs. Kautz, DC 03-999 [2004],
and Montana vs. Sievers, DC 06-740 [2006].)
      Cases litigated under the private attorney general actions may be brought by either an interested or
disinterested party when an issue of public interest is at issue. In this case, my interests could not be greater. My
daughter was killed. The public interest could hardly be greater: deterring roadway fatalities—the leading
cause of death of all ages in this country from 3 through 33—and preventing lifelong physical and mental
suffering either from highway injuries or the lifelong suffering from having a loved one’s life senselessly robbed.
(See 2005 NHTSA Traffic Safety Facts.)
      Yeazell stated that Brown, 347 U.S. 483 (1954), “gave us a model for social change through litigation,” and
in which “litigators of sufficient dedication and creativity could bring about deep, important social changes. That
belief itself marked a new vision of legal change.” (See Yeazell, 57 Vand. L. Rev. [2004].)
      Rubenstein also heralded the importance of Brown and civil rights lawyers like Thurgood Marshall in
developing the “origins” of the private attorney general doctrine. (See Rubenstein, 57 Vand. L. Rev. [2004],
p. 2161.) As Rubenstein noted, the “private attorney general,” doctrine “authorize[s] a private citizen to file suit
even if the sole purpose of the case were to vindicate the public interest as opposed to some private interest of the
litigant.” For example, the National Association for the Advancement of Colored People’s (NAACP) private
attorney general was paid only a small salary but focused on principles and issues of major public interest. “The
conventional story is that compensation is a private goal and deterrence is a public one: private attorneys pursue
compensation for individual clients arising out of past injuries (torts, breaches of contracts, discriminatory harms,
financial losses) while public attorneys aim to deter future bad behavior.” Id. As with Brown, in Cady’s case,
this convention is reversed. The public interest is represented only when the private attorney general acts on
behalf of the public. In Cady’s case, the private attorney is acting against an adversarial public attorney, the
Montana Attorney General.
      Until Brown, 347 U.S. 483 (1954), black children were given a “separate but equal” education. They sued
for and won the right to an integrated and equal education as guaranteed under the Fourteenth Amendment to the
U.S. Constitution. The Supreme Court stated in Brown:
                                                          6
      To separate them [black children] from others of similar age and qualifications solely because of race
      generates a feeling of inferiority as to their status in the community that may affect their hearts and
      minds in a way unlikely ever to be undone.
      The Attorney General has marginalized my daughter and me to a status of being less than inferior. We are
less than nothing as to our status in the criminal justice community solely because the driver who killed my
daughter may have been drunk on sugar rather than alcohol (i.e., fermented sugar). McNair stopped Cady’s
wonderful heart and mind FOREVER on August 15, 2002. Without the state of Montana acknowledging that a
crime even occurred, when my daughter is a corpse, places an unbearable burden on my heart and mind. Unlike
the black children in Brown, who have now largely become integrated, Cady and thousands like her killed on
highways never will have the chance of the legal system making them “whole” specifically. They are in the
ground . . . dust to dust. The only thing that can be done for them is to punish the malfeasor as a deterrent against
similar recklessness to help others in the public interest. But the Attorney General would deny Cady’s life even
the dignity of that. The Brown court stated, “Separate educational facilities are inherently unequal.” So is the
unequal pursuit of justice and unequal enforcement of the same laws related to the prosecution of malfeasors. The
families of loved ones killed by drunk drivers get the validation of prosecution when the drunk driver’s acts are
prosecuted, but the survivors of the non-drunk drivers’ alleged recklessness get the legal version of the lethal 1-2
punch: their family member killed on the highway and again by the legal system.
      In Cady’s case not only was McNair not prosecuted, she was not charged, she was not cited, and she has
not even one mention on her driving record to warn others that she killed a child. Cady will never get the right
to any education past fifth grade. She has been robbed of her life. This is far more extreme and irrevocable than
a “separate but equal” education. Therefore, the court system holds the only possibility of giving meaning to
Cady’s life—that of holding the malfeasor responsible for her acts to deter such killing in the future.
      By way of comparison, in the area of non-drunk negligent homicides in Montana, the discrimination
against victims of non-drunk reckless drivers is so severe it does not even measure up to the lowest, most
execrable, and overruled “separate but equal” standard articulated in Plessy v. Ferguson, 163 U.S. 537. There is
no “separate” in the criminal sphere related to non-drunk drivers in Montana. There is no “equal” in the criminal
sphere related to non-drunk drivers in Montana. And, in Cady’s case, there is no mention even on her driving
record that McNair caused a crash, let alone a fatal crash. Therefore, to the Attorney General and the Department
of Justice, Cady appears to not even be a statistic and not a life that matters at all. The survivors of loved ones
killed by reckless non-drunk drivers are treated like the lowest underclass and the effect of the Attorney General’s
failure to act and then vigorously fighting to silence Cady’s voice and mine in this litigation is to keep Cady’s
case invisible. Contrary to the seeking of wrong to be righted based on principle and morality in Brown, John
Connor, the Attorney General’s Chief Criminal Counsel stated, “Issues of morality play no role in our
decisions[.]” This is vile. (See 7/17/07 Connor email.)
      It is imperative to note that non-drunk drivers cause the vast majority—66%—of highway fatalities. Yet,
so far, Montana’s criminal justice system pays little attention to the non-drunk’s killing behaviors. This isn’t fair

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and most certainly denies equal treatment under the Fourteenth Amendment to the U.S. and Montana
constitutions. Moreover, current Montana law allows for prosecution of such drivers if the will to prosecute also
exists. See Mont. Code Ann. Sec. 45-2-101(42). In Fletcher (p. 995), the court found that prosecutors “should
seek justice[.]” Justice is pursued on the grounds that it is moral, or right.
      Is the Attorney General so arrogant as to believe he can never make a mistake and if one mistake after
another is made, as happened in Cady’s case, his decisions are not to be reviewed. This would give the Attorney
General dictatorial power in violation of the doctrine of separation of powers and of the right of Cady’s family to
seek redress from this court. When the police err, one may submit a complaint to an internal affairs division to
review the wrong-doing or corruption. In going against prosecutorial discretion, which we contend is
prosecutorial abuse of discretion, my only recourse is to appeal to this court.
      I have applied to this honorable court in the long-standing tradition of Brown and private attorney general
doctrine for redress of a grievance that the status quo does not want to recognize or address. This is what the
courts are for—the last resort of those whose rights have been vanquished. Yeazell addressed this very issue.
Brown, one of the leading private attorney general action cases, provides a shining example in leading the way for
righting wrongs and for social change in society. What practical means did poor blacks have to redress the wrong
of “separate but equal” educations other than the courts? What practical means do the families of silenced and
marginalized victims of reckless non-drunk drivers have to right the wrongs against their dead loved ones other
than the courts? Yeazell stated that Brown “constituted a very powerful symbol of litigation as a transformative
force.” Yeazell noted that Brown and the civil rights movement were “in many ways, the crucible in which
modern public interest law was forged.” Yeazell p.1983. The law is malleable and flexible and evolves with an
evolving society. Similarly, the private attorney general doctrine provides “a catalyst for social change” and for
“social change” that would not occur without the influence of the courts. Yeazell p.1984.
      Other private attorney general actions are being brought in Montana to enforce public interest issues like
making certain that school lands are not sold for below market value as noted in Montanans for the Responsible
Use of the School Trust v. State of Montana, 1999 Mt. 263, 989 P.2d 800 (1999) Quoting Serrano v. Priest (Cal.
1977), 20 Cal. 3d 25, 569 P.2d 1303, 141 Cal. Rptr. 315, Mont. Trust outlined three factors for an award of
attorneys fee indicating the type of private attorney general action that would be so awarded: “(1) the strength or
societal importance of the public policy vindicated by the litigation; (2) the necessity for private enforcement and
the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the
decision.” Under these factors, Cady’s public interest life-and-death issue of highway safety certainly qualifies,
as an issue of primary societal importance with the public policy of saving lives. Also, all persons traveling on
Montana highways regardless of class, race, social origin, religious or political beliefs stand to benefit from
increasing the convictions of reckless drivers causing fatalities. In Finke v. State of Montana, ex rel. Mike
McGrath, 314 Mont. 314, 65 P.3d 576 (2003), the Montana Supreme Court ruled unconstitutional a statute related
to municipality enforcement of building codes. The court correctly ruled that “the application and enforcement of

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building codes is an issue of public safety that affects all persons living in the affected area, not only record
owners of real property.” Obviously, highway safety “affects all persons” on Montana highways.
      Private attorney general actions are already being used to further the public good extensively in California.
For example, a private attorney general action was used in California to enforce a criminal statute to prohibit
Lucky Stores, Inc. from selling cigarettes to minors. Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th
553, 561 (1998). A private attorney general action was used to prohibit General Foods Corp. from its aggressive
television marketing of its high-sugar cereals as healthy to children when they were not. Committee on
Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 211 (1983). Cady’s private attorney general
action involves an immediate life and death public interest issue—highway safety—and to prevent the abuse of
prosecutorial discretion: lack of prosecution because Missoula County missed the statute of limitations for a
misdemeanor charge, further discussed in Section V. All subsequent actions by Missoula County and the agents
of the Attorney General’s Office should be suspect because of the potential self-interest of minimizing this error.
      While the plaintiffs in the foregoing cases were able to enter the court system and to obtain redress through
private attorney general actions, I am dependent on this court for any form of criminal redress. The Supreme
Court justices in Brown did the moral thing in getting rid of “separate but equal” education. Instead, in Cady’s
case, the Attorney General’s agent Connor stated that he could not be bothered with “issues of morality.” I could
not obtain justice from him, so we are requesting justice in that same line of “public interest” law stemming from
Brown and other public interest private attorney general actions. My charge is certainly as, or more, important.
(See 7/17/07 Connor email.)
      If an example is needed to fill in the blanks, look to the enlightened jurisdictions that are leading the way in
protecting children and others. Use South Dakota’s Larson’s case to apply to Cady’s case for prosecution of
McNair. Cady’s case could be a landmark Montana example for holding allegedly reckless non-drunk drivers
accountable when they cause fatalities. This not only would help in the vindication of Cady and my rights but
also would stand as a beacon for the rights of other victims so harmed. Therefore, it is imperative that this court
not only “second-guess” but review the improper decision and mistakes of the Attorney General and rectify them.
IV. CADY’S AND OTHER’ CONSTITUTIONAL RIGHTS DEMAND CHARGING NON-DRUNK
MALFEASORS OF NEGLIGENT HOMICIDE WHEN THEY CAUSE FATALITIES.
      The one dignity that the judicial system can grant dead victims of highway killers and their families is to
give their cases fair and equal treatment in the judicial system. For example, two fatalities caused by diabetic
drivers were addressed in California this past summer. In the prosecuted case a California power company
worker had a hypoglycemic reaction, drove “erratically” and killed two young people who were stopped waiting
for a stoplight. Because that defendant “knew” his condition was bad, tried to remedy the situation, and took too
much insulin, but nonetheless drove, his case is being prosecuted for two counts of negligent homicide. He is
being charged with being “intoxicated” by too much insulin—a “medical DUI,” if you will. He was also charged
with one count of driving under the influence causing injury with enhancement for those he injured. In the other
case, a diabetic drove for 10 miles down the wrong lane of Highway 101 and killed an oncoming driver in a head-
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on collision. His case is not being prosecuted because he supposedly did not “know” his attack was coming on.
(See 6/3/07 San Jose Mercury News article.)
      This is a glaring case of unequal treatment under the law just as we have been describing with Cady’s case.
The difference between the suffering of the two families is monumental. In the first case the family members
stated how important prosecution was to them. It validated and gave dignity to their loved ones’ lives. Much
information came to light about the facts of the case, because the state, wanting to prosecute, performed a
thorough investigation. In the second case, family members, it was said, experienced the “second killing” of
having the criminal justice system kill the case, allowing the malfeasor to go free because of an incorrect mindset
and incorrect imposition of the law. In the second case, the victim’s family got little to no state-provided
information about the death of their loved one. That case was marginalized and made invisible like Cady’s.
      This “killing” of your child’s right to have her case heard after she herself has been killed recklessly is an
insult upon death, which is already more than one can bear. The first pain—the senseless killing of one’s
child—is something a parent can do nothing about. The second pain—the discrimination against holding the
responsible malfeasor accountable is something this court can and should do something about.
      My private attorney general action is brought to benefit the most important and most basic right of a
child—to have a safe highway that ensures the child will reach adulthood. Or, if a reckless person takes that
child’s life, to ensure that the malfeasor is punished as a deterrent. Montana’s Constitutional Due Process rights
provide for this, stating that “[n]o person shall be deprived of life, liberty, or property without due process of
law.” Mont. Const., Art. II, Sec. 17. In Cady’s case, she was deprived of life, liberty, and property forever and
with NO process of law. McNair was never charged, or cited, and has never received even the mention on her
driving record that she killed a child. This is an abominable outrage. The Attorney General endorses this
outrage. I ask this court to do the civilized thing for Cady, and for the public interest of all Montanans, and
rectify this outrage by reviewing Cady’s case and doing what is right under the law and for the public interest of
all Montanans in highway safety—charging McNair—or granting the other requested relief.
      The Montana Constitution gives “individual dignity,” stating that “[t]he dignity of the human being is
inviolable.” Mont. Const., Art. II, Sec. 4. My Cady, with all the promise in the world, who read at the college
level in fifth grade, and who was the incarnation of all of my best wishes, was killed by a thoughtless, reckless
driver and Montana’s law enforcement values Cady and other victims like her as being so valueLESS that it
missed the misdemeanor statute of limitations and then fails to even charge the malfeasor. This is an outrage and
states that Cady’s life has no dignity in Montana.
      The Montana Constitution provides Equal Protection, stating that “[n]o person shall be denied the equal
protection of laws.” Mont. Const., Art. II, Sec. 4. Cady not only did NOT receive equal protection, her case got
no “protection” from law enforcement whatsoever. Missoula County threw the misdemeanor case against Cady’s
killer away by missing the statute of limitations and then failed to do anything about the negligent homicide
case—although Missoula County Attorney Fred VanValkenburg stated the case probably would not have been
dismissed for lack of probable cause. Townsend stated that Cady’s case was stronger in probable cause than two
                                                      10
other Montana cases, Kautz and Seivers, in which negligent homicide charges were filed against the perpetrators.
Why does Cady’s life count for less than nothing by these so-called defenders of the law? They can have no
excuse when a reckless driver takes Cady’s life and the malfeasor receives no charge, citation, or even a
mention on her driving record. (See 12/16/07 Tucker family affidavit and 5/31/07 Townsend memo.)
       The Montana Constitution states that “[n]either the state nor any person . . . or institution shall discriminate
against any person . . . on account of race, color, sex, culture, social origin or condition, or political or religious
ideas.” Mont. Const., Art. II, Sec. 4. Cady, as a victim, is being discriminated against because of the “culture”
and mindset in Montana of not prosecuting non-drunks. The truth is that generally a small percentage of the
worst drivers have the severe wrecks and cause the fatalities—not the safe, careful, and considerate drivers. For
example, in an article in The Week magazine, a 94-year-old woman, who began driving at 12, has driven her
whole life without a ticket or crash, because she kept her “eyes wide open” and “st[u]ck to the rules of the road
like glue.” Quite a contrast to McNair and other reckless highway killers.) Cady also is being discriminated
against because of her “social origin”—not being the daughter of the Attorney General or the Governor or,
presumably, being from Idaho. As stated before, prosecution would have been swift for the killer of the
Governor’s daughter if such prosecution were desired. This implies that Cady’s life lacks the “inviolable dignity”
guaranteed by the Montana Constitution. Cady is also being discriminated against based on what has—to use the
Chaney court’s term for unreviewable agency discretion—an “anachronistic ring”: the almost kneejerk
brainwashing of not holding non-drunks accountable for their killing acts. Chaney et al. v. Heckler, 231 U.S.
App. D.C. 136, 718 F.2d 1174, fn 36, (1983). The Attorney General apparently somehow believes that
defendants’ killing behaviors should supersede those of the not-quite “person,” (in the Attorney General’s view)
who just happened to be killed by the reckless drivers. Is it that the Attorney General believes that these “living”
defendants can cause their political careers more harm than the forever silenced dead victims? What else could
Montana be waiting for—until the Governor’s daughter has been killed by a non-drunk or until every state in the
Union has put its stamp of approval on dealing with the reckless killing behaviors of non-drunks? If Montana is
waiting for the Governor’s daughter to be killed—that’s a lose-lose if she’s killed tomorrow or never—either way
procrastinating from deterring the loss of future lives is immoral and the equivalent of judicial murder. I pray this
court disagrees with Connor’s view that “morality has no place in decision-making[.]” Every great decision, like
Brown v. Board of Education, has morality at its heart and applies the “Golden Rule of law.” Decide for others as
you would decide for yourself or your family. What would the decision be if your child were killed on the
highway or your child attended a segregated school? How many more children and others have to senselessly die
in Montana? The state of Montana, through Missoula County and the Attorney General, is discriminating against
Cady and every other fatal victim of reckless non-drunk drivers by failing to prosecute the malfeasors. One
would hope that this honorable court would not procrastinate at the expense of other’s lives. (See Evans, p. 222,
12/21/07 The Week article and 7/17/07 Connor email.)
      Also, unfortunately, looking at Montana’s legal history, it is unclear whether Montana has the will to even
prosecute the drunk highway killers. See, for example, State v. Ingraham, 290 Mont. 18, 29-51, 966 P.2d 103,
                                                      11
108−111 (1998), in which the defendant was convicted of negligent homicide for crossing the center line and
killing one person and seriously injuring another, but then Montana partially reversed the defendant’s conviction,
stating that introduction of defendant’s use of prescription drugs may have prejudiced his trial. Moreover, this
was done after Ingraham, a lawyer, failed to render aid to his victim, instead broke into a house to call his father,
a lawyer, in an attempt to try to come up with a defense for his behavior, and tried to hide the fact that he was
under the influence. (See also State v. Lambert, 280 Mont. 231; 929 P.2d 846 [1996].) Montana reversed the
conviction of criminal endangerment by a habitual alcoholic who has to have one of the worst driving records in
the legal annals:
      According to the presentence investigation report, Lambert, at 31 years of age, had been convicted of
      driving under the influence 9 times in Montana and California; his license was suspended or revoked some
      20 times; he had received 11 separate jail sentences that ranged from serving two days in jail to serving 60
      days in jail; he had been fined between $30 and $1000 for his offenses; he had failed to complete court-
      ordered after-care or Alcoholics Anonymous; and, while released on bond in the instant case, he was again
      arrested for DUI, driving while his license was suspended or revoked and eluding a peace officer. (p. 248,
      fn. 2)
      I am from Montana. I proudly graduated magna cum laude from the University of Montana. Cady was
killed in Montana just after she explored one on my former favorite places on earth, Holland Lake. But Montana
now is transformed, for my family, for all time, as the state protecting the “mobility” (i.e., recklessness) and the
“rights” (i.e., impunity) of highway killers at the expense of safe drivers and travelers and those whose mobility is
raped forever—the innocent killed. It is as if Montana and the Attorney General would want to sweep highway
deaths into the Big Sky forever and just carry on with its vainglorious past of laissez-faire speeds and “vigilante”
justice. But while such thinking may have its lineage in an erstwhile charm, who ever really benefitted? Traffic
analyst Evans has shown that people “drive as they live”—or die. The small percentage of selfish, inconsiderate,
bullying drivers who must “own the road” do so at the expense of the safe, considerate drivers and erstwhile
living travelers, as I now so heartbreakingly know. But these bullying personalities and this wrong thinking must
be reined in. I am pleading with the court to see that I am only asking to make my daughter’s life a vehicle for
change. To give Cady and me that mean honor, which is in the public interest, is to respect my daughter’s dignity
and afford for my family the minimal justice of decency and what other families have received. Because both
death and life are unbearable without that honor, to deny Cady and my family minimal justice is to deny us equal
protection under the law and meaning from our lives. Cady’s case is the nexus of the past and future. By doing
what is right and recognizing that the killed must have the eternal right of dignity, justice sought on their behalf,
which grants the killed the small but so necessary compensation of immortality through the judicial process, such
as entering case law or having justice at least sought by a prosecutor who tried to prosecute but their cases were
dismissed, as the Yellowstone County families have, there is some record of a public process of respect for the
killed. I have not one shred of that. One can speculate that in the days of the Copper Kings, the miners’ lives
were considered cheap and their deaths were wrongly viewed as acceptable risks of extracting ore. But at least
then, the responsible companies, adjudicators, and prosecutors could claim ignorance of safe practices and argue
that, perhaps, minimal standards, for the time, were met. Nothing remotely like that can be argued here. McNair
                                                        12
senselessly and violently took my daughter’s life because she grossly, obscenely disregarded decent self-care of
her diabetes, use of her license-required steering knob, and the most fundamental rule of the road: driving on her
side of the highway. McNair should be held accountable for the irrevocable consequence of her pattern of
recklessness: Cady’s lost life. The Montana mindset of condoning highway recklessness must be recognized for
what its factual result: dead children, dead adults, and dead justice. (See Evans, pp. 220−223. On Montana
history, see, for example, Carl B. Glasscuck, The War of the Copper Kings: Greed, Power and Politics [1935],
and K. Ross Toole, Montana: An Uncommon Land [1959].)
        Instead of letting highway killers go free, prosecute them. Instead of letting the Ingrahams, the Lamberts,
and the McNairs go free, use Cady’s case as a vanguard to enter the pantheon of emerging law. Most people no
longer want irresponsible drunks on the road. Nor do they want irresponsible reckless killing non-drunks on the
road.
        In industry, including where I work at the Idaho National Laboratory, every fatal “event”—not
“accident”—is considered preventable and requires a formal cause analysis in which the fatality is maximally
analyzed in great detail from a “systems approach”—to reveal what about the environment, or “system” should be
fixed. Typically, extensive corrective actions and “lessons learned” are developed. In McNair’s case, nothing
happened afterward, no analysis took place, and no lessons were learned by Montana officials or drivers.
McNair is free to kill again and nothing is on her record. Instead of squandering Cady’s case, it should be
analyzed for what went wrong and the information used in an effort to prevent recurrence. It should also be used
to send a message to non-drunk reckless drivers that if they drive recklessly and kill, they will pay with the
presumption that they committed negligent homicide. Send Cady’s case and the others to juries for them to
decide. I think the court system would find that, properly informed, juries will have a greater will to hold the
malfeasors accountable, out of self-interest, than does the Attorney general who may be focusing on the ballot
box.
        As noted in my December 16, 2007, brief, State v. Larson, 1998 SD 80; 582 N.W.2d 15 (1998), and People
v. Balkey, 53 P.3d 788, 790 (2002), are on point to show Montana how to hold accountable reckless malfeasors
who cause fatalities. (See also State v. DeSeelhorst, 2007 UT App 115 [2007] in which the defendant was
convicted of negligent homicide for striking and killing a bicyclist whom she had seen while the defendant was
outside her lane of traffic; or State v. Boss, 127 P.3d 1236 [2005] in which the defendant, who oversteered and
flipped her van on its side to skid and kill a 4-year-old girl, was convicted of misdemeanor negligent homicide. A
Utah trooper was also convicted of misdemeanor negligent homicide for killing two people while speeding 70
mph to a police call without her warning lights on.) It is in Montana’s and the nation’s public interest to hold
these killing drivers accountable. It is a life-and-death matter to children and other victims, and to Cady’s
survivors, who have only video snippets of Cady’s glorious guitar-playing, her first-place running victories at her
school track meet, or the extraordinary artwork and writing she left behind. The world will never know how
much it lost through Cady’s senseless death. This court can provide some justice by reviewing this case and
charging McNair, or granting a hearing.
                                                          13
      The difference between Montana and the enlightened jurisdictions convicting malfeasors of negligent
homicide is almost totally one of mindset. In South Dakota, Colorado, Utah, California, and New York the
emerging mindset is to hold the malfeasor accountable. Some Montanans apparently still want to let highway
killers off. Missoula County, for example, boasted that Townsend had prosecuted William Andrew Johnson, the
diabetic who killed an infant and two young adults in one crash after he had killed someone else in a previous
crash. Townsend convicted Johnson only after he had killed someone else before. He had gone to doctors and
lied to be able to drive, killed, confessed, and then plea-bargained. Does the driver have to kill four people
before Montana reacts? Montana is operating under an outdated mindset. This must change. Montana needs to
“come up to speed” so to speak, with emerging law and a new mindset, rather than keeping the old mindset of
winking at speeding, recklessness, and death.
      The Montana Constitution guarantees “inalienable rights” of “pursuing life’s basic necessities, enjoying . . .
their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and
happiness in all lawful ways.” Mont. Const., Art. II, Sec. 3. Cady, who scored in the ninetieth percentile or
higher in everything but math, never got her chance to enjoy her life beyond age 11. An exceptional artist, Cady
was already designing clothes in her artwork. With her creative and mercurial mind, she was bound to succeed at
wherever she put her energies. Instead, Cady’s life, voice, and legacy were snuffed out for all time by an
allegedly reckless driver.
      The Montana Constitution gives as its first guarantee that of “popular sovereignty.” Mont. Const., Art. II,
Sec. 1. It states “[a]ll government of right originates with the people, is founded upon their will only, and is
instituted solely for the good of the whole.” Id. It would seem that the Attorney General should read the Montana
Constitution again. “All government of right originates with the people,” it says. Not the other way around as
the Attorney General would have one think with his “divine right of kings and dictators” mentality of
unreviewability and non-second-guessing when he makes and then stubbornly sticks to his mistakes. Such
government, the Montana Constitution continues, “is instituted solely for the good of the whole.” Id. No one
who is not afraid of losing a vote could say that when a reckless driver kills a child and the killer is allowed to go
free without a mention of this on her driving record, that such outrageous governmental action would be
“instituted solely for the good of the whole.” Any right thinking, honorable, civilized, law-abiding citizen is
going to wonder what this government would do if his or her child were killed. Only the irresponsible, reckless-
drunk and non-drunk killing drivers would favor letting a person off who has killed a child on the highway. Good
members of society would see that holding reckless non-drunk drivers who kill accountable is in the public
interest and is just the kind of activity envisioned by the private attorney general action when the public official
fails to execute the duties of his office. Therefore, as the mother of Cady, at 11, a soulful classical guitarist, a
fabulous runner, a passionate writer, an exceptional reader, and talented artist who planned to be a fashion
designer in New York City, I ask this court to do the honorable and lawful thing and review this case and charge
McNair with negligent homicide and/or have a hearing.

                                                           14
      Demonstrate respect for my daughter’s dignity by granting my request to provide judicial review of the
facts of her death. As noted in Item 3 (p. 3) of my December 16, 2007, Response Brief, “judicial review” could
include the appointment of an independent prosecutor, such as Nassau County, New York, vehicular homicide
prosecutor Maureen McCormick, in accord with the private attorney general doctrine. McCormick led the recent
prosecution of a drunk driver for “depraved indifference—murder” on the highway of a 7-year-old flower girl and
the limousine chauffeur. (See 28 U.S.C. § 49 [1994] and People v. Heidgen, Nassau County, 1910N/2005).
V. “STEERING KNOB ISSUE” EXEMPLIFIES OUTRAGEOUS GOVERNMENTAL MISCONDUCT.
      In my December 16, 2007, Reply Brief, I provided unequivocal documentation that the State of Montana
required Janie McNair to have a steering knob to legally drive on the day she caused the fatal crash and killed
Cady, that such restriction remained in place afterward, and that such restriction is still in place.
      The repeated misstatements in Defendant’s December 21, 2007, Reply Brief concerning McNair’s prima
facie violation of her Montana driver’s license steering knob restriction when she killed Cady are so troubling,
they constitute outrageous misconduct in and of themselves, but also are tied to a pattern of conduct that requires
presentation to the court. (See Fletcher, stating that judicial review is not only allowed, but essential, in
instances of prosecutorial abuse, “gross injustice” and “outrageous government misconduct.”)
        This recalcitrance by the Defendant justifies an in-depth rebuttal. Page 2 of the Attorney General’s Reply
Brief, quoted below for clarity, startlingly restates the identical misstatements about McNair’s driver’s license
restriction I previously, unequivocally, disputed for the court in my December 16, 2007, Response Brief: that
the July 16, 2007, Chief Criminal Counsel John Connor letter wrongly stated that McNair did NOT have a
steering knob restriction on her Montana driver’s license either in 2002 or currently:
            In addition to reviewing the extensive file materials and the exhaustive examination of
      the case done by Karen Townsend, we investigated several additional aspects of the case.
      Agent McKay interviewed and obtained records from a DOJ driver services supervisor about
      the steering knob requirement on Ms. McNair’s driver’s license. Ms. McNair’s first driver
      license application in 1977 shows a power steering and automatic transmission restriction; no
      steering knob is noted. The 1997 form shows the same information. In her 2004
      application, only a corrective lens restriction is noted. According to the information
      gathered, a driver examiner may require a steering knob, but it is no longer encouraged
      because steering knobs can be potentially dangerous, e.g., catching in clothing. It is also less
      relevant or useful now since most cars are equipped with power steering and automatic
      transmissions. There is no evidence in the file to suggest a nexus between a steering knob,
      or lack thereof, and the crash. (emphasis added to indicate blatant misstatements)
      On p. 8 of my December 16, 2007, brief, I quoted from a letter, which I also attached to the brief, written
on Attorney General letterhead from Department of Justice, Motor Vehicle Division, Records and Driver
Control Bureau Chief Greg Noose in which he states unequivocally that McNair DID HAVE the steering knob
restriction in place on the day she caused my daughter’s death and does so to this day:
            I have been able to confirm that the driver’s license that was issued to Janie
      McNair on August 10, 1999, and which expired on October 17, 2004, was restricted to
      “corrective lens” and “steering knob”. These same restrictions are currently in force
      for the driver restriction license that was issued on October 13, 2004 and which will
      expire in 2012. (See Plaintiff’s 12/16/07 Response Brief, p. 8.)
                                                       15
        And yet Defendant points to the same incorrect part of the Connor letter in his December 21, 2007,
Reply Brief in an effort to support his claim that he is not “uninformed” and to dispute my claim that the
Attorney General’s Office has been loose with the facts to the point of misinforming. To the contrary, he appears
to still be uninformed of information within his own office.
        In the interest of absolute clarity that McNair committed this prima facie violation of her driver’s license
restriction of driving a car not equipped with a steering knob occurred at the moment she killed Cady, I am
reattaching to this brief the signed letter from Records and Driver Control Bureau Chief Noose. I ask the court to
note that the same steering knob restriction violation was documented on page 1 of the 2002 Montana Highway
Patrol (MHP) Fatal Crash Investigation report. For the convenience of the court, I am also attaching a
December 3, 2007, certified driver record signed by Noose, which documented conclusively that McNair’s
driver’s license renewed in 2004 currently has a steering knob restriction. (See 9/30/02 MHP Report.)
        Propagating misleading statements to Missoula County that are used to justify recommending against
prosecution of the malfeasor indisputably responsible for at least misdemeanor crimes in killing my child
accountable for even a single act of wrongdoing is not acceptable conduct from the State’s Attorney General’s
Office. For the Attorney General to present to the court the identical misinformation, proved unequivocally
wrong just five days before, constitutes outrageous government misconduct, particularly when it is used as
justification for silencing our last resort to find a semblance of decent, ordinary justice from the State of Montana,
where my daughter gurgled her last breath.
        My daughter, Montanans, and the entire traveling public within the State of Montana deserve the
power of the truth. The truth is that McNair committed a prima facie violation of her driver’s license
restriction, presumably put in place because of previously documented demonstration of incapability of
driving safely without it. In other words, because McNair had what was tantamount to a documented
prior condition before she killed Cady and, therefore, was required to have adaptive equipment to be
able to drive safely and lawfully, the burden of proof must be placed on her to prove that her lack of a
steering knob was NOT an issue when she failed to negotiate the “S” curve where she killed my
daughter. The MHP Fatal Crash Investigation report issued on September 30, 2002, correctly
identified that McNair was driving in violation of her driver’s license restriction to have a steering
knob.
        I also provided documentation in my December 16, 2007, brief about the relevance of steering
knobs. Certified driving rehabilitation specialist Frances Tromp van Holst, who is the coordinator of
the driving rehabilitation program at the University of Washington Medical Center in Seattle, stated in a
December 5, 2007, letter that steering knobs have important adaptive equipment been in her program
for 20 years and continue to be routinely recommended for one-handed drivers to operate a vehicle
safely:



                                                          16
      It is my opinion that if a driver is restricted to driving a car equipped for the disability of the
      driver, and the driver does not use that device but chooses to drive anyway, that person is
      at risk to being in an accident. (See 12/5/07 Tromp van Holst letter.) (emphasis added)
      In the Oct. 13, 2005, meeting with my family and me, VanValkenburg acknowledged that McNair’s lack of
a mandated steering knob was a “slam-dunk” offense and could have easily been prosecuted. Rather than what
the Medical Committee for Human Rights court called a “magical incantation” to be used “as a shield for
arbitrariness” for prosecutorial discretion, the steering knob has gone through a magical de-incarnation, a
disappearing act—a legerdemain—that in effect robs the victim and her family, and the public, of evidence that
could be used to deter future deaths on the highway. It is outrageous that instead of seeking evidence to support
prosecution of someone who had killed a child, the Office of the Attorney General would appear to seek to garrote
the state’s own evidence.
      Other examples that cumulatively constitute a pattern of outrageous government misconduct are described
below for the convenience of the court, the first of which pertains to what appears to be an attempt to choke
another key piece of state evidence.
•     Missoula County Attorney VanValkenburg recused himself from the investigation of McNair because of
      what he claimed was a friendship with Bob Cushman, the driver of the car in which Cady was riding. Yet,
      VanValkenburg participated in meetings and communications, and still retained ultimate authority over
      Cady’s case. Also, he did not recuse his entire office in violation of Rules 1.10, “Imputation of Conflict of
      Interest General Rule,” and 1.11, “Special Conflict of Interest for Former and Current Government Officers
      and Employees,” of the American Bar Association Rules of Conduct for Professionals, so adopted by the
      Montana Supreme Court. The intent of rules is to prevent what happened in Cady’s case, as shown by
      Chief Deputy Missoula County Attorney Karen Townsend missing the statute of limitations for a
      misdemeanor charge. In the tradition of blundering “Keystone Cops,” even after this “recusal,” Attorney
      General Chief Criminal Counsel Connor stated at the July 27, 2007, meeting with my family that the
      decision to prosecute was solely that of VanValkenburg. Perhaps the court can appreciate my frustration
      when I received an email on August 10, 2007, from VanValkenburg, just four days before what I thought
      was the end of the statute of limitations for any charge against my daughter’s killer, stating:
            [T]he main problem for you is that I decided from the very beginning in this matter
            that it was not appropriate for me to make a charging decision in this case because of
            my friendship with Bob Cushman. That’s every bit as true now as it was 5 years ago.
            Hence, the issue was referred to Karen Townsend, John Connor and Barbara Harris
            for their review subject to an appeal to Mike McGrath. Therefore, you really ought
            to be talking to them or accepting the fact that they are not going to do what you
            would like them to do.
      Precisely. VanValkenburg should have either recused himself and his office, or not. My family and I were
      hoping to have the benefit of the prosecutorial skills of the chief prosecutor, but we were denied that and
      the only law that was applied in our case was Murphy’s law. The statute of limitations for minimal justice,
      a misdemeanor charge, was missed by Chief Deputy Missoula County Attorney Townsend and Missoula

                                                         17
    County and the Attorney General, as a consequence, would have us simply accept their mistake and move
    on. With matters central to the meaning of life itself, such as minimal respect for the life of one’s child,
    there is no “accepting” a complete lack of justice or dignity and such treatment becomes a violation of what
    it means to be a person in this country. The civil rights cases reflect this degree of unbearability and
    consequent irrespressibility. I ask the court to recognize Cady’s need and my need and the need for ALL
    OTHERS KILLED and their families of at least a token charge, a citation, a ticket—an equitable solution
    of some kind to indicate to Cady, to my family, to McNair, and to society that McNair’s taking of my
    daughter’s life was criminal. It must be noted that in late 2006, VanValkenburg prosecuted Leland
    Ellwein, a diabetic highway killer of a retired Bozeman police chief under very similar circumstances. The
    unbearable encroachment of the rights of one typically represent the encroachment of the rights of many
    silent others, as the private attorney general doctrine recognizes. What my family, and I suspect others,
    have experienced is akin to highway “lynching,” as the many white crosses on Montana highways suggest.
    (See 11/6/06 Leland Ellwein judgment.)
•   Prosecutor Townsend did not follow due process. MHP Captain of the Missoula Division Tom Hamilton
    advised me that no ticket against McNair was issued at the scene because they anticipated that a felony
    charge would be filed. Due process for a prosecutor is to try to support the felony charge and, if for some
    reason, there is the belief that evidence is insufficient to meet that charge to charge the malfeasor with a
    lower misdemeanor offense. Townsend did not follow due process and failed to charge McNair with any
    offense because Townsend missed, by her own admission, the misdemeanor statute of limitations. (See
    previously submitted 10/8/03 Townsend letter and attached 12/16/07 Tucker family affidavit.)
•   Montana Prosecution Services Bureau Chief Barbara Harris erroneously stated at a July 27, 2007, meeting
    in Helena with my family that statements from expert witnesses are “not evidence.” Her statement was
    designed to dismiss letters my family had obtained from national medical authorities that McNair’s out-of-
    control blood sugar directly contributed to the cause of the crash killing my daughter. She thereby
    dismissed evidence of probable cause out of hand.
•   Chief Criminal Counsel Connor at the same meeting shockingly made the claim that if the case against
    McNair went to trial that McNair would be more sympathetic before jury as an “apple shaped woman” than
    my 11-year-old senselessly killed child. (See 8/8/02 medical record.)
•   In his July 16, 2007, letter to VanValkenburg recommending against prosecution, Connor shockingly
    blamed Bob Cushman, the driver of the car in which Cady was riding, for failing to defensively drive more
    effectively and escape McNair’s killing behavior! He wrote, that “had [Cushman] turned away from the
    McNair vehicle, into the adjacent pull-out area on his side of the highway, it is likely that the crash would
    have developed differently.” This ignores the state’s own Department of Justice report that McNair drove
    so closely in front of him that Cushman had only 0.35 to 0.52 second for “maximum times” to react when
    1.5 seconds are required for the average driver. Moreover, Cushman did not exhibit the killing behavior, it

                                                       18
      was McNair. Yet, Cushman is blamed in writing by the Attorney General’s Chief Criminal Counsel. That
      is outrageous government conduct.
•     My family and I were told at the October 13, 2005, meeting that Karen Townsend was the State of
      Montana’s resident expert in prosecuting diabetes cases for negligent homicide. We asked to receive a
      copy of malfeasor Janie McNair’s diabetic hemoglobin A1C Test that allows a physician to evaluate
      backwards over three months of the patient’s control or lack of control of her diabetes. Although the
      “expert,” Townsend, had never heard of this test, which would be very basic in prosecuting a diabetes case.
      My brother-in-law Dale Robbins, M.D., Esq., informed her of the test. However, because this very
      important information came from us, the victims, it was not seen as worth anything, and was rejected.
      Later, we had two independent physicians, Harvard-trained physician Julian de Bruyn Kops, M.D., and
      Johns Hopkins-trained physician and diabetologist John Lijelenquist, M.D., review McNair’s medical
      records and give expert opinions, also very basic to a diabetes case. They both found McNair’s wildly out
      of control diabetes having a 541 mg/DL blood sugar level and a 12.8 A1C test highly relevant to her ability
      to drive safely on August 15, 2002. Missoula County’s failure to assign Cady’s case to a prosecutor
      knowledgeable about diabetes, and to completely ignore information provided by knowledgeable medical
      professionals is outrageous government conduct.
•     Missoula County Attorney VanValkenburg refused even my meager plea for justice, if charges were not to
      be filed against McNair, that he request that a “validity check” be performed of her driving, as allowed in
      Montana of an insulin-dependent diabetic involved in a fatal car crash. “Validity checks” involve an
      assessment by a three-member committee led by DMV Records and Driver Control Bureau Chief Noose.
      VanValkenburg would not consider even this meager request.
•     Attorney General McGrath was quoted in the Helena Independent Record on August 15, 2007, as stating,
      “We don’t put people in prison for high blood sugar.” The state has and absolutely should—when the
      result is a vehicular homicide. Perhaps, McGrath should have said, “We don’t put people in jail for
      killing children.” Cady’s dignity would not have been so utterly violated if McNair had gotten at least a
      citation, or the six-month deferred sentence of Leland Ellwein for causing a fatality during a diabetic
      episode. Apparently, the Attorney General must be reminded that keeping drivers who have killed others
      off the highway is in the public interest. Such drivers are at a much higher risk of killing others than
      the great majority of safe drivers. (See 8/15/07 Helena Independent Record reprinted article, 11/6/06
      Leland Ellwein judgment, 2/12/02 William Andrew Johnson judgment and Evans, p. 379.)
•     I also requested that Defendant McGrath subpoena psychological records of Defendant McNair on the
      grounds that they could augment the records regarding her mental state for negligent homicide. I did not
      even get the courtesy of a reply to this request. (See 8/3/07 Tucker letter.)
      To summarize, (1) this litigation pertains to a homicide not a trivial crime; (2) Missoula County and the
Attorney General created a conflict of interest because of Missoula County missing the misdemeanor statute of

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limitations and then the Office of the Attorney General doing nothing to correct the failure, when the result was
concealing Missoula County’s error; (3) this conflict of interest, combined with the misinformation about the
steering knob issue and the other identified failures cumulatively reach the standard of outrageous government
misconduct and require that this honorable court take action.
VI. CONCLUSION—PLAINTIFF’S RELIEF
        My requested relief is for a hearing to demonstrate to the court the compelling need to (1) review the case
against McNair for negligent homicide; (2) determine whether sufficient probable cause of negligent homicide
exists for this court to recommend prosecution of McNair immediately; (3) if not, appoint a prosecutor or private
attorney without ties to Missoula County or the Attorney General’s Office, preferably from outside the
jurisdiction with knowledge of the emerging law in this area—for example, Nassau County, New York, Vehicular
Homicide Division, Prosecutor Maureen McCormick, who has both the knowledge of emerging law and broad
experience in holding malfeasors accountable—who could work jointly with a Montana prosecutor to ensure
correct application of Montana law for determination of probable cause to charge McNair with negligent
homicide or another crime; or (4) if the court finds probable cause for negligent homicide lacking, appoint a
mediator to facilitate a meeting between McNair and me to facilitate an equitable remedy including, for example,
community service by McNair geared toward improving highway safety.


      Respectfully submitted this 4th day of January, 2008.               PATSY A. TUCKER,
                                                                          Pro Se Litigant
                                                                          1270 Creekside Court
                                                                          Idaho Falls, Idaho 83404


                                                 By: __________________________________________
                                                        PATSY A. TUCKER
                                                        Pro Se Litigant

                                         CERTIFICATE OF SERVICE


I hereby certify that I mailed a true and accurate copy of the above foregoing Reply Brief to Attorney General’s
December 21, 2007, Reply to Defendant’s Motion to Dismiss to:

      Mike McGrath, Montana Attorney General/Ms. Jennifer Anders, Assistant Attorney General
      215 North Sanders
      P.O. Box 201401
      Helena, Montana 59620-1401




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