Protect Big Sky Christian Center's Homeless Living in Trailers and RVs

Mr. Monforton, Harris's attorney and a former member of the Montana House of Representatives, on the anti-Christian bias and the political motive behind the case:

7. As to his case, whistleblowers in the auditor's office complained of anti-Christian discrimination, particularly by the deputy securities commissioner, Lynne Egan, who frequently criticized Christians and referred to the Boy Scouts as "Nazi's." She was the state's undeclared expert witness at Mr. Himes's trial. There was substantial evidence that his case was affected by this discrimination.

8. Additionally, the auditor's chief counsel at that time, a State Senator who had opposed pro-family positions in the state legislature, was running for attorney general. Indicting — and convicting Mr. Himes would appeal to his voter base.

9. There is no doubt in my mind that this was a politically motivated case against Mr. Himes.

Attorney Quentin Rhoades agrees the case was politically motivated:

10. There is also evidence that his case was politically motivated.

Mr. Monforton, on Harris's innocence and the price he has paid:

6. After carefully reviewing the file immediately after Mr. Himes retained me, I was convinced that Mr. Himes was completely innocent of the charges against him. To this day, I firmly believe that he was wrongly convicted.

15. Mr. Himes, a Vietnam veteran who successfully practiced law in California throughout his career, and has run a homeless shelter in Montana since retiring, has paid a heavy price for crimes he did not commit.

Mr. Monforton on the biased trial judge, quoting Justice Rice on the record:

10. When we brought a motion to discover the extent of the discrimination, we found our trial judge was prejudiced against our potential whistleblower witnesses and Mr. Himes. In denying my motion, he questioned the whistleblowers' credibility and criticized Mr. Himes: "It is troubling to the undersigned, a Christian, that Himes has offered such a deficient skein of obfuscation purportedly based upon his religious beliefs to avoid defending on the merits." Obviously, such remarks were prejudicial to our case.

11. In an unsuccessful appeal of this denial of our motion to the Montana Supreme Court, Justice Jim Rice commented: "...the evidence Himes has marshaled is not insignificant. Himes has produced sworn testimony of employees offering their firsthand observations of visceral anti-Christian bias on the part of officials within the Auditor's Office, and mistreatment of Christians in that office.... This evidence is nothing short of appalling. ..." (Harris Himes v. Montana Twenty-First District, Ravalli County, the Hon. Loren Tucker, District Judge, OP 13-224, pp. 10-11, May 21, 2013.)

12. While there is always a risk that a judge will retaliate if an attempt is made to disqualify him or her, I had no choice but to attempt to disqualify our trial judge because of his apparent prejudice toward our case. In his response to my motion to disqualify him, the judge strongly criticized me, personally. My motion to disqualify failed.

Mr. Rhoades's account of the trial: the biased judge, the flawed jury instruction, the jury's own finding of no criminal intent, and the sentence:

11. There is substantial evidence that Mr. Himes faced a biased, adversarial judge.

12. The judge frequently demeaned Mr. Himes and his witnesses.

13. He refused to hear twelve offers of proof, where even one such denial is reversible error. State v. Davis, 156 A.2d 392, 393 (1959).

14. There is also a problem with the jury instruction having to do with securities. The jury instruction read: "A person acts 'willfully' if the person is aware of what the person is doing. It does not mean that the person intended to violate the law, injure another, or acquire any advantage."

15. The State admitted to fabricating a definition when they defined "willfully" in terms of "knowingly": "...The definition of willfully in Title 1 is almost identical to the definition of knowingly...." (Sentencing Transcript 47:20-22). In other words, there is no such statute which defines "willfully" in this manner.

16. Since there is no such statute, there is no offense of which Mr. Himes was convicted, because, for there to be an offense, it must be described in the law: Section 45-1-104(2), MCA reads: "No conduct constitutes an offense unless it is described as an offense in this code or in another statute of this state."

17. This instruction also violated another quintessential due process statute, Section 45-1-102(1)(c), MCA: definitions of offenses are "to give fair warning of the nature of the conduct declared to constitute an offense...."

18. Therefore, even if this definition were in the codes, Mr. Himes didn't have "fair warning" in March 2008 of two counts of alleged criminal conduct when this non-codified definition appeared for the first time in September, 2013—just before his trial.

19. There is also the issue that there is clearly no intent required in this jury instruction. Yet, Mr. Himes was convicted of a felony based upon this jury instruction. This would seem to fly in the face of U.S. v. U.S. Gypsum Co., 438 U.S. 422, 436-438, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978).

20. The jury foreman stated: We the jury found that there was no criminal intent on the part of Mr. Himes in any of the issues before the Court in the trial. While he may have been ignorant of the law we decided that no criminal intentions were evident.... the jury instruction [for theft by deception] said that the two men had the "intent" of depriving Mr. Serata of his property. We agreed that Mr. Himes and the other pastor had a vision of creating a company to serve the Lord and hopefully to turn a profit as well. While their business savvy isn't readily apparent their intentions seemed genuine to us. (Sentencing Transcript 77:2-10.)

21. The judge gave Mr. Himes a suspended sentence, which included serving time in jail and paying $150,000 in restitution (plus $15,000 interest and fines), but his sentence should have been deferred, since he was convicted of nonviolent offenses, had no prior criminal record, and his "participation was relatively minor" (§46-18-222(4), MCA).

22. There is also an issue as to Mr. Himes's incarceration. The sentencing court: "must provide alternatives to imprisonment for the punishment of those nonviolent felony offenders who do not have serious criminal records...." (§46-18-101(3)(f), MCA). Mr. Himes was convicted of nonviolent felonies and had no prior criminal record.

Judge Knell: the jury found Harris not guilty of the serious charges; the fraudulent-practices conviction was reversed; what remained were essentially regulatory registration charges:

8. I followed Mr. Himes's trial in 2013. The jury found him not guilty of theft by deception, conspiracy to commit theft by deception, and conspiracy to commit fraudulent practices. Due to an incorrect jury instruction, he was convicted of fraudulent practices, but this was reversed on appeal and dismissed on remand. Ultimately, he was convicted of essentially regulatory charges of failure to register as a salesperson and failure to register a security. In California, these would be misdemeanors (California Corporations Codes Sections 25210 and 25110, misdemeanors "which may or may not involve moral turpitude"); but they are felonies in Montana.

9. I am also familiar with Mr. Himes's appeals to both the Montana Supreme Court and the United States Supreme Court. I know that he had personal input in the writing of these briefs.

10. With regard to his criminal sentence in Montana, his probation officer recommended that he be conditionally released from direct supervision. He brought a motion, and his conditional release was granted. I understand that a year after the granting of this motion, he can apply to have his sentence terminated, given that he provides proof of continued good behavior. Mr. Himes is pursuing that avenue.

Judge Knell: the California Bar Court's decision substantially exonerates Harris and found no act of moral turpitude:

11. I am also well acquainted with his proceedings before the California State Bar Court and one day attended his trial before the Court.

12. With regard to Mr. Himes's fitness to practice law, In the Matter of Terrones, 4 Cal. State Bar Ct. Rptr. at 299, attests to Mr. Himes's fitness to practice law because he exercises the "high moral standards required of all attorneys in the state" in his service to the community and to the homeless. Then there are the traits of "honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process" (In the matter of Henschel (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 867 citing Rules Regulating Admission to Practice Law, rule X, § 1.) which demonstrate fitness to practice. As I stated before, I can vouch that Mr. Himes exhibits those traits.

13. It seems to me that the Bar Court's Decision substantially exonerates Mr. Himes: "many of Serata's claims are not credible on their face or are completely contradicted by evidence from other sources," and Mr. Himes's misconduct does "not evidence any act of moral turpitude;" his actions consist simply of "modifying and presenting to Serata the written evidence of his investment in Duratherm." However, California law required the Court to deem his convictions conclusive: ... the [Montana] Supreme Court was not attempting to resolve credibility issues surrounding the testimony of Geoffrey Serata (Serata), the prosecution's chief witness; nor was it seeking to weigh or decide the considerable evidence contradicting that testimony. The court was merely setting forth the evidence in "the light most favorable to the prosecution." As such, the Montana Supreme Court's summary of that evidence is owed no deference by this court as a finding of fact, except to the extent those facts and legal conclusions were required to establish the two criminal convictions — which are deemed to have been conclusively established [California Business & Professions Code § 6101 — which mandates that convictions must be deemed conclusive].