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Decision No. 1151

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April 23 2010
In Re: Appeal of Jimmy J. Montgomery

Digest of Case

The weight of the evidence presented to the Trial Court is sufficient to sustain the charges of immorality under ¶ 2702.1(a) of the 2004 Discipline, disobedience to the Order and Discipline of The United Methodist Church under ¶ 2702.1(e) of the 2004 Discipline, and sexual misconduct under ¶ 2702.1(j) of the 2004 Discipline of which Dr. Jimmy J. Montgomery was found guilty. There were no errors of Church law as to vitiate the verdict and/or penalty of the Trial Court. The verdict is affirmed.

Statement of Facts

This case arose out of misconduct committed by Dr. Jimmy J. Montgomery, an ordained minister of the South Carolina Annual Conference. Dr. Montgomery who is married engaged in an ongoing adulterous, sexual relationship with a woman whom he knew to be married. A Church Trial was conducted on June 10 and 11, 2009. At trial, the complainant testified as to the multiple incidents of sexual misconduct by Dr. Montgomery. There was evidence presented that corroborated the complainant’s testimony. The evidence presented by Dr. Montgomery was primarily his denial of the events. The Trial Court convicted Dr. Montgomery, terminated his annual conference membership, and revoked his credentials. The penalty of the Trial Court took effect immediately. Dr. Montgomery appealed to the Southeastern Jurisdiction Committee on Appeals. After a hearing held on September 25, 2009, the Committee on Appeals held that the weight of the evidence presented was sufficient to sustain the charges against Dr. Montgomery and that there were no such errors of Church law sufficient enough to vitiate the verdict and penalty of the Trial Court. Dr. Montgomery is now appealing to the Judicial Council. A written notice of appeal was submitted November 9, 2009, and a second notice of appeal was submitted November 12, 2009. The second notice of appeal alleges several errors of Church law. The notice also alleges additional grounds for appeal that were not heard or ruled upon by neither the Trial Court nor the Committee on Appeals. Therefore, these alleged errors are not properly before the Judicial Council for a ruling. At an Oral Hearing in Morristown, New Jersey, April 22, 2010, R. Jeffords Barham and Diane A. Moseley appeared for the South Carolina Annual Conference. Jerry Eckert and John Salatti appeared for Dr. Jimmy J. Montgomery. The request for a closed hearing was denied.

JURISDICTION
The Judicial Council has jurisdiction under ¶ 2715 of the 2008 Discipline.
ANALYSIS AND RATIONALE
Our review of the trial and the appellate process is limited by the provisions of ¶ 2715.7 of the 2004 Discipline, which provides that an appellate body is required to determine two questions only: (a) Does the weight of the evidence sustain the charge or charges? (b) Were there such errors of Church law as to vitiate the verdict and/or the penalty? These questions shall be determined by the records of the trial and the argument of counsel for the Church and for the respondent. I. Weight of the Evidence. Paragraph 2711.2 of the 2004 Discipline states: “the burden of proof for a vote to convict shall be clear and convincing.” The Trial Court, having had an opportunity to hear testimony in person, is in the best position to evaluate the credibility of the witnesses. The role of the Jurisdictional Committee on Appeals and the Judicial Council is to evaluate whether the evidence determined to be credible by the Trial Court is clear and convincing in establishing the charges. Our review of the Trial Court transcript supports a conclusion that the weight of the evidence presented to the Trial Court was sufficient to sustain the charges and penalty against Dr. Montgomery. The Trial Court’s presiding officer has discretion to determine whether testimony and other evidence are relevant and reliable and thus admissible. The admission of DNA evidence was within the authority and discretion of the presiding officer. The Trial Court record is silent as to an objection by Dr. Montgomery of this or any other evidence. Dr. Montgomery is not allowed now to lodge an objection to the admission of the evidence. If Dr. Montgomery had objected at trial, it would have preserved his right to argue the issue on appeal, but that is not the case before us. As stated in Decision 1094:
...it is essential that the person charged, the Church, the presiding officer and the Trial Court prepare as extensive and complete record of proceedings as possible in order to facilitate our review. A presiding officer of a Trial Court should endeavor to rule on each question of law presented in much the same manner as a civil court judge sitting with a jury.
The Southeastern Jurisdiction Committee on Appeals found that the weight of evidence sustained the charges after reviewing the Trial Court testimony and the arguments of counsel. II. Errors of Church law. In Decision 1094, the Judicial Council chose to address multiple questions, but the only mandate given by the General Conference to the Judicial Council is the one specified in ¶ 2715.9.
In all cases, the right to present evidence shall be exhausted when the case has been heard once on its merits in the proper court, but questions of Church law may be carried on appeal, step by step, to the Judicial Council. [emphasis added]
The questions before the Judicial Council in this matter, therefore, must be narrowly drawn and must be limited to church law. The Judicial Council can entertain only those questions that pertain to church law. The only items of fact that the Judicial Council may address are those that relate to issues of law. See Decision 595. In this matter, the appellant has raised many questions about the complainant, the investigatory process, the specifications of the charges, the trial procedures, the inclusiveness of the Trial Court, the merits of scientific evidence, as well as other topics. Not every question can or must be addressed by the Judicial Council since only questions of Church law can be considered at this stage. Did the Jurisdictional Committee on Appeals fail to consider the exhibits, evidence, arguments, and objections in its appellate review to determine whether the weight of the evidence sustained the charges (¶ 2715.7)? The Jurisdictional Committee on Appeals is bound by Church law to take into consideration only specified items. The records and documents of the trial, including the evidence, and these only, shall be used in the hearing of any appeal. It is the respondent who must make certain that all relevant objections are entered into the record of the trial. Appellants cannot seek to alter or amend the record. The answer to this question of Church law is “no.” Was the bill of charges and specifications flawed in its form or substance for lack of specificity? All of the charges specify offenses listed in ¶ 2702. According to ¶ 2706.5(a), “The specifications should be as specific as possible with information such as date, place, and specific events alleged to have occurred.” The law of the Church does not require exactitude on these details or precision. Therefore, with regard to this question of Church law, the answer is “no.” Did the Trial Court fail to meet the test of inclusiveness as required by the Discipline? The 2004 Discipline mandates in ¶ 2709.2 that the Trial Pool must include “racial, ethnic, and gender diversity.” The Trial Court, however, is drawn from that pool. The respondent and the counsel for the Church have four peremptory challenges and unlimited challenges for cause, as the Trial Court is established. There is no mandate in the 2004 Discipline that the eventual Trial Court reflect some numerical diversity. Hence, the answer to this question of Church law is “no.” We find that there were no such errors of Church law as to vitiate the verdict and/or penalty of the Trial Court.

Decision

The weight of the evidence presented to the Trial Court is sufficient to sustain the charges of immorality under ¶ 2702.1(a) of the 2004 Discipline, disobedience to the Order and Discipline of The United Methodist Church under ¶ 2702.1(e) of the 2004 Discipline, and sexual misconduct under ¶ 2702.1(j) of the 2004 Discipline of which Dr. Jimmy J. Montgomery was found guilty. There were no errors of Church law as to vitiate the verdict and/or penalty of the Trial Court. The verdict is affirmed. Susan Henry-Crowe and F. Belton Joyner, Jr., recused themselves and did not participate in this decision. Joe May, first clergy alternate, participated in this decision. April 24, 2010

CONCURRING OPINION
Although I agree with the majority, I write to express deep concern about the transcript of the trial proceedings. There were many discussions that were off the record. It appears that some of those discussions involved issues that may have been raised as objections by appellant’s counsel. It also appears that the presiding officer made various determinations pursuant to unrecorded side bar conferences. However, it is impossible to ascertain the extent of same. There must be a record upon which the Jurisdictional Committee on Appeals and the Judicial Council can rely. The record in this case makes it difficult to be certain as to the full extent of that which transpired at trial. I am deeply concerned about the level of compliance with ¶ 2710. I urge trial courts to be certain that a full and accurate transcript of the proceedings are made by the court reporter and that all side bars that involve the presiding officer be recorded and transcribed for the record. Beth Capen April 24, 2010
DISSENTING OPINION
I respectfully dissent. Fair process is a fundamental pre-requisite in all supervisory and judicial processes. The Discipline mandates specific requirements for the conduct of church trials that include the right of advocacy, the right to confront any and all witness against the accused and a verbatim transcript of all trial proceedings. Where the record of Trial Court contains numerous off-the- record conferences, fair process cannot be presumed. Our review of the decision of a Trial Court and of intermediate appellate bodies is limited by the provisions of ¶2715.7 of the 2004 Book of Discipline which provides that an appellate body is required to determine two questions only:
a. Does the weight of the evidence sustain the charge or charges? b. Were there such errors of church law as to vitiate the verdict and/or the penalty?
These questions must be determined by a review of the record adduced at the trial and the arguments of counsel for the Church and the respondent. The right to present evidence is exhausted when the case has been heard on the merits by the Trial Court. Questions of church law may be carried on appeal through the appellate process and ultimately to the Judicial Council. Dec. 1094. The judicial processes of our church are guided by principles of fair process for all concerned as set forth in ¶ 2701. Church trials are an expedient of last resort. The General Conference has prescribed specific procedures to ensure the application of fair process principles to the fullest extent possible. Paragraph 2711.2 of the 2004 Discipline provides that the burden of proof for a vote to convict shall be clear and convincing evidence. Whether the weight of the evidence sustains the charge or charges is to be determined based upon the record of the trial and the argument of counsel. The Trial Court is in the best position to judge the credibility of each witness. The Trial Court possesses a superior ability to consider the appearance, attitude, and behavior of each witness, the interest of the witness in the outcome of the case, any bias or prejudice the witness may have, the inclination of a witness to speak truthfully or untruthfully, and any other matter that has a tendency in reason to prove or disprove the testimony of the witness. The respondent has raised numerous allegations of error in the application of church law during the trial process. Several of respondent’s points go to the heart of fair process and are dispositive of the issues raised. There are numerous entries in the record where off-the-record conferences took place during the trial proceedings. These off-the-record conferences were not entered into the record and are not available in the transcript of the Trial Court. Respondent’s papers suggest that 87 such off-the-record conferences took place. I have not undertaken to do an actual count of those off-the-record conferences; however, in an alarming number of those instances, it is clear from the context of the discussion that substantive rulings were made by the Presiding Officer that determined the direction of the testimony. The Judicial Council is left without an opportunity to review the rulings of the Presiding Officer or to determine whether there was a clear waiver of an opportunity to object or a strategic decision not to object made by respondent’s counsel. The extreme number of off-the- record conferences leads to the unavoidable conclusion that there was a failure of compliance with ¶ 2710.8 and that fair process principles were violated. A significant number of objections raised in the respondent’s brief do not appear in the transcript of proceedings before the Trial Court. A trustworthy transcript of verbatim proceedings would establish whether objections were made or not made in a timely fashion. We are unable to discern whether any of the respondent’s objections were taken up during the many conferences that were held off the record. The very fact that a disturbing number of off-the-record conferences were held is persuasive evidence that church law was violated and with it, the rights of the accused. Paragraph 2710.8 requires a verbatim record of all trial proceedings. A complete record of all proceedings is indispensible to Judicial Council review. The absence of a reliable record of all trial proceedings casts an unfortunate pall of unreliability on the entire trial proceedings and creates insurmountable barriers to a showing of fair process. There are matters that arise during trial proceedings that should be taken up outside the hearing of the Trial Court in order to prevent issues of evidentiary relevance which the Presiding Officer must decide from becoming mixed with issues of fact, which the Trial Court must decide. Even when such conferences are necessary, they are an important part of the judicial process and should be preserved as part of the record of the Trial Court proceedings as mandated by ¶ 2710.8. Presiding officers, counsel for the church, and counsel for respondents all have an obligation to insure compliance with disciplinary provisions at all stages of investigatory and trial processes. The absence of a reliable record deprives reviewing bodies of the opportunity to affirm that complete and correct trial proceedings were conducted by Presiding Officers with strict adherence fair process standards as set forth in our Book of Discipline. Respondent also alleges that the admission of the DNA test report lacked foundation and was therefore unreliable. The use of scientific DNA evidence in church trials is not addressed in the Discipline and presents as a question of first impression. Any party to a church trial may use scientific evidence if such evidence has a tendency to reliably aid the Trial Court in understanding disputed issues. Neither the church, nor the respondent, is required to adduce scientific evidence in order to prove its case or its defense. However, whenever a party chooses to offer scientific evidence, the receipt of such evidence must be consistent with principles of fair process. Scientific evidence requires a competent testimonial sponsor who possesses specialized knowledge, skill, and training relevant to the area of inquiry. In addition, the use of scientific evidence entitles the respondent to examine all records relied upon by the sponsoring witness if the evidence was relied upon in the determination of the outcome of the Committee on Investigation, the Trial Court, or appeal committee or body. ¶2701.2(e). Dec. 691. Dec. 795. The respondent requested any and all photographs, benchmarks, and electropherograms used or relied on by the scientific tester, however said materials were not supplied. The failure to provide a competent witness and the records relied upon by the church denied the respondent the right of advocacy as guaranteed in ¶2701 of the Discipline. The right of advocacy includes the right of an effective advocate and the right to confront any and all witnesses against the accused. In Dec. 1094, the Judicial Council noted that because the scope of appellate review is limited, it is essential that the person charged, the church, the Presiding Officer, and the Trial Court prepare as extensive and complete a record of proceedings as possible in order to facilitate Judicial Council review. Paragraph 2710.8 of the Discipline mandates that a verbatim record of all proceedings of the trial be reduced to writing to comprise, along with all exhibits, papers, and evidence, the basis of any appeal. In Judicial Council Dec. 497, the decision of the Trial Court was set aside and a new trial ordered in part because the transcript of proceedings was unreliable and failed to demonstrate strict adherence to fair process principles. The administrative and the judicial processes of the Discipline are carefully and specifically designed to protect the rights of clergy and of the church. Those processes must be followed carefully and explicitly or injustice results. Dec. 777. Rather than being a test of guilt or innocence, the overriding principle is that every accused is entitled to be tried through a fair process. Fair process can never be assumed but must be demonstrated at every stage of proceedings. A verbatim record would provide proof of the integrity of the trial process. In my opinion, there were egregious errors of Church law that vitiate both the verdict and the punishment of the Trial Court. I respectfully dissent. Jon R. Gray April 24, 2010

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