Montana judge faces call for impeachment after incest sentencing

A state district judge in Montana is facing a call for his impeachment after sentencing a man who admitted to raping his 12-year-old daughter to 60 days in jail, of which he will serve 43.

A petition posted on the website Change.org calling for the impeachment of the Valley County, Mont., district court judge, John McKeon, has more than 55,000 signatures. The petition states, "Judge McKeon did not uphold the responsibility of ensuring justice as he is required to in his elected position." This is not the first time in Montana that outrage has followed a sentence for raping a child. Earlier this year, the state Supreme Court left intact a 10-year sentence for a man who raped a 14-year-old girl. He had originally been sentenced to just one month in prison by a different state judge. According to the National Center for State Courts, to impeach a judge in Montana two-thirds of the state Legislature must vote for it, or the state's judicial standards commission may recommend it to the state Supreme Court.

The current case originally appeared before McKeon in February, when a 40-year-old man from Valley County, Mont., was indicted on three counts of incest for allegedly raping his daughter multiple times, according to court records.

We are not naming the defendant or his family members because doing so could also identify the victim in the case. NPR does not name survivors of sexual assault without their permission.

In July, the defendant and the state reached a plea agreement. The deputy county attorney for Valley County, who was prosecuting the case, agreed to dismiss two of the three charges if the defendant pleaded guilty to committing one count of incest on Nov. 18, 2015.

Plea agreement

The plea agreement recommended a prison sentence of 100 years with 75 years suspended, so the defendant would spend 25 years in prison, as well as the "educational phase and cognitive behavioral phase of a sexual offender treatment program," $80 in court fees and any future cost of "psychological counseling, therapy and treatment" for the victim.

Those recommendations were in keeping with the minimum punishment under Montana state law, which court documents state as:

"A person convicted of the offense of incest where the victim is 12 years of age or younger and the offender 18 years of age or older at the time of offense shall be punished by imprisonment in the state prison for a term of 100 years and fined an amount not to exceed $50,000. The court may not suspend execution or defer imposition of the first 25 years of the sentence."

But although the defendant, his lawyer, Casey Moore, and the state attorney prosecuting the case, Dylan Jensen, all signed the plea agreement, the official sentencing was still up to McKeon. And the judge had some leeway, because under Montana law, there is room for an exception to the minimum sentence for incest.

The sentencing exception

The law states that the defendant can argue for a lesser punishment if a psychosexual evaluation by a "qualified sexual offender evaluator ... recommends that treatment of the offender while in a local community affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society."

At a sentencing hearing in October, a member of the Montana Sex Offender Treatment Association named Michael Sullivan, who had evaluated the defendant, testified that "the defendant could be safely treated ... in the community, that such community treatment was available" in a nearby town and "that the defendant would benefit from such community-based treatment," according to court documents.

The prosecution did not contest Sullivan's findings, according to court records.

The victim's mother wrote in a letter to the court, "I do not feel 25 years in prison is necessarily the best way for the defendant to pay for what he has done." The letter continued:

"The defendant made a horrible choice. He needs help — not to spend 25 years locked up. He has 2 sons that still love him and need their father in their lives, even with very understandable restrictions. I would like to see my children have an opportunity to heal the relationship with their father. ... He is not a monster, just a man that really screwed up and has been paying in many ways since and will continue to have to pay through this justice system and with the loss of family and friends and his own conscience."

The victim's maternal grandmother also wrote a letter to the court, part of which appears in McKeon's sentencing judgment. "What [the defendant] did to my granddaughter was horrible, and he should face consequences," she wrote, "But his children, especially his sons, will be devastated if their dad is no longer part of their lives."

Court records say the defendant's daughter, the victim in the case, did not attend the sentencing hearing. No one testified on her behalf.

43 days in jail

In a judgment filed Oct. 17, McKeon sentenced the defendant to 30 years in prison with all 30 years suspended, plus 60 days in county jail. Taking into account the 17 days the defendant had served, the total jail sentence came to 43 days, plus $80 in court fees and future medical costs incurred by his daughter.

The sentence also requires the defendant to register publicly as a sex offender, which state records show he has, and attend a sex-offender treatment program. For the next 30 years, it also restricts his access to the Internet, denies him the right to own a computer or possess pornography of any kind, and prevents him from owning firearms or having contact with anyone under 18 without supervision.

In all, there are more than 40 requirements that, if he violates them, require that the defendant serve the remainder of the sentence in prison.

In his written judgment, McKeon said the "lack of input directly from the victim ... or directly from an advocate for the victim" and the "uncontested report and testimony that the defendant would be safely treated ... in the community" factored into his decision. He also noted "the defendant is now employed in the community, has established a support group within the community, and has support of a church that he regularly attends."

McKeon defended his decision to The Associated Press, pointing out that "the defendant's suspended sentence has numerous restrictions."

But the petition against McKeon calls the decision "horrible," stating, "60 days in prison with a suspended 30 year sentence does not match the crime and fails to acknowledge the horrors the victim had to endure."

On Thursday, a spokesperson for the group organizing the petition, Justice4Montana, said it had been sent via email to Montana Sens. Jon Tester and Steve Daines as well as the chief clerk for the Montana House of Representatives, State Rep. Austin Knudsen and Gov. Steve Bullock, but that none of the six people had confirmed receiving the document.

Denying McKeon his state pension, rather than removing him from the bench, appears to be the ultimate goal of the petition. That is probably because, as the local Havre Daily News reported, McKeon plans to retire in November after 22 years as a judge.

"I've tried to do my job studiously, hardworking and timely and confidently throughout this entire tenure," McKeon told the paper.

"A lot of these cases are emotional cases, cases that carry with them a certain amount of stress," he said. "There's something that might weigh with you for some time, until you might make a ruling."

But, he said, "Once I make a decision, I've got to move on. That's what the appellate courts are for."

Thus far, no appeal has been filed in the case. Copyright 2019 NPR. To see more, visit https://www.npr.org.