Sheriff defends Deputy Balenger

Mineral County Sheriff Ernie Ornelas held a press conference on Thursday, Sept. 19 at 6:00 pm in front of the Mineral County Courthouse in Superior, where himself and Deputy Jim Balenger’s attorney defended the actions of the deputy on the evening of Sept. 20.

Sheriff Ornelas began by elaborating as to why he called the press conference – stating that comments made in both the Mineral Independent and Missoulian were “not correct” and that he was using the event as a means of clearing the “misconceptions” about the incident in question.

“Rather than going back and forth in the written press over what’s going on I wanted to be able to do this so that the local residents, the voters that voted me in, would be able to hear from my mouth at the same time the press is hearing it,” Sheriff Ornelas said. “That way there’s no confusion as to what’s being said at least from my part.”

Approximately 150 residents and members of the media were in attendance and after elaborating as to why the conference was being held the sheriff giving the criminal history of D.J. Bass – the fully restrained inmate who was struck in the stomach and then tased by Dep. Balenger.

The history of Bass included everything from a 2011 charge for minor in possession and disorderly conduct to partner/family member assault and assault on a peace officer.

The Sheriff then went over the incidents in the jail cell that led up to the event in question – including tripping the fire alarms in his cell and flooding the jail as well as “stopping up the toilets” to flood his cell.

“The point is,” Sheriff Ornelas concluded. “This inmate, even though he was small in stature, was very strong and very capable of providing significant resistance.”

After giving an account of the incident in the Mineral County Detention Center, and the county attorney requesting the Montana Department of Criminal Investigation to conduct an investigation into the matter, Sheriff Ornelas elaborated on the reason for the length of the investigation itself.

“The investigation was initiated in Oct. 2012 and the length of time that it took to do the investigation was solely in the hands of DCI,” Sheriff Ornelas said. “There were questions from some people as to why it took so long and that was out of our control.”

In June of 2013, when County Attorney Marcia Boris received a letter from Montana Assistant Attorney General Brant Light regarding the investigation, Sheriff Ornelas said a discussion on appropriate punishment for Dep. Balenger was had between himself, the county attorney and two attorneys from the Montana Association of Counties.

“At the time that we discussed that, there was no discussion about problems and from my understanding – because there was no objections – this was the discipline,” said Sheriff Ornelas. “The recommendation from the assistant state attorney was that the discipline would be at the discretion of myself and the county attorney.”

Light’s letter prompted the four to discuss what discipline measures would be taken and in the written formal reprimand of Dept. Balenger disciplinary actions are taken including being suspended without pay for five days, taking a remedial course in use of force as well as additional training on the use of force in both the jail and on patrol.

According to Sheriff Ornelas both the five-day suspension and the course in use of force were completed by Dep. Balenger prior to him returning for duty in July. However as of publication Monday, there is nothing on record with the County Clerk and Recorder verifying that a course was taken and completed.

Sheriff Ornelas then discussed the county attorney’s decision that this case was a Brady issue – a decision that the sheriff partially agreed with.

“There is no question that for the use of force incident, it is a Brady issue,” Sheriff Ornelas said. “I don’t believe at this time the credibility issue that is being brought up by the county attorney in regards to Deputy Balenger is an issue. There has been no documented instances when it comes to Deputy Balenger of untruthfulness or lying or deceitfulness in any other investigation that would lead to a Brady issue.”

Upon stating his opinion, the sheriff then took out a letter he stated was from a “state attorney who will remain nameless.”

The letter further elaborated on what a Brady disclosure is and after it was read Sheriff Ornelas said “that is not the issue there.”

The sheriff stated that he was unaware the county attorney would be on vacation at the time of the press conference. Since Thursday, Boris has had the opportunity to watch the proceedings and made comments on several points – including the sheriff’s claim he was unaware of her vacation.

“(The sheriff) is being disingenuous when he says he didn’t know I was going to be out of town – I just can’t leave,” Boris told the Mineral Independent Monday. “Furthermore he didn’t send notification of this press conference to the county commissioners or myself – we had to hear about it from the newspaper on Wednesday or through a third party.”

Boris also discussed the letter Sheriff Ornelas read from the “state attorney who will remain anonymous,” stating that she requested a copy of the letter from the sheriff on Friday and still has not received it.

“The request was made to have it given to my office today and either the sheriff is unwilling or unable to give me the letter,” Boris said.

The sheriff then spoke about a comment made by Boris in the original Mineral Independent story regarding the investigative files being released, which stated both herself and county commissioners have “expressed displeasure” with the discipline for Dep. Balenger.

“The only thing I have received from the county attorney was that she had sought termination,” Sheriff Ornelas said. “At no time did any of the county commissioners, either in writing, verbally, or otherwise express to me displeasure with the suspension or remedial training.”

Both Boris and the county commissioners expressed issues taken with the comment made by Sheriff Ornelas regarding not being informed. On Friday, Commissioner Roman Zylawy told the Mineral Independent that the county attorney “did it on our behalf so I didn’t think there was a need for me to go in there and reiterate that.”

Boris said that she “expressed” her “displeasure to the sheriff face-to-face.”

“I did express to the sheriff that the punishment was not enough and that his actions warranted termination,” Boris said.

County Commissioner Duane Simons also weighed in on the sheriff’s statement.

“Right is right and what he (Dep. Balenger) did was wrong,” Commissioner Simons said. “He is still a big liability to Mineral County and we cannot afford a big liability. In case he (the sheriff) hasn’t understood it in the past, our doors are open and he is welcome to come in and discuss this at any time. We have tried in the past to have appointments with him.”

Sheriff Ornelas then brought up statements made in a Missoulian article regarding the incident – including reiterating that there is no “credibility issue” and that no one has approached him regarding terminating Dep. Balenger.

Also amongst the statements made in the Missoulian the sheriff took issue with were statements made by Commissioner Zylawy that the county just hired a sixth deputy.

“That sixth deputy is not a full deputy, it is not a position I asked for,” Sheriff Ornelas said. “It was a position discussed in commissioners meetings in regards to the misdemeanor probation officer position.”

Sheriff Ornelas said he was asked by the justice of the peace if he would be willing to accept the misdemeanor officer position in his department since the grant funding previously used to fund the position through the courthouse was no longer available.

“I agreed, but at the time I had expressed to the commissioners that it was their decision because moving that position to a deputy position would include a higher pay,” Sheriff Ornelas said. “I would be willing to accept the other responsibilities but it was strictly in the county commissioners hands. But that position was discussed to be a trial for a year and was not to be a regular position. That position is not going to be a regular position where I am going to be able to assign that position regular deputy shifts.”

Commissioner Zylawy took issue with this statement, asking if that person cannot be used as a deputy why is the county paying for six deputies.

“All I can say is that we are currently paying for a sheriff, an undersheriff and six deputy positions,” Commissioner Zylawy said. “Where they are at within the department I don’t know but we are paying six sworn officers, a sheriff and an undersheriff.”

The sheriff concluded his portion of comments by defending his office and personnel.

“I believe that we have trustworthy and competent deputies to perform their job,” Sheriff Ornelas said. “Since the time I took office we have been consistently short and with the circumstances that we have now I believe that they have performed greatly.”

The sheriff then handed the proceedings over to Dep. Balenger’s attorney, Richard Buley, who said in his 32-years as an attorney he had “never seen anything like this” and that this situation is “truly unique.”

“Jim cooperated with the investigation fully, he met with the investigator and gave a statement in December,” Buley said. “Jim, through my office attempted to find out what was going on with this investigation – he didn’t feel right taking leave with pay while the investigation was going on and we had no idea why it was taking so long.”

Buley then referenced Light’s report,

“In that report it says something very important and that is after the total investigation the attorney general’s office could not find enough evidence to prosecute Jim for assault or any other crime,” Buley said. “What that means and what Marcia Boris, the county attorney knows it means, is one word – innocent.”

However, two of the three paragraphs in the report from Light states the following:

“In light of this, there appears to be probable cause to charge Deputy Balenger with under Montana Code Ann. 45-5-204, mistreating prisoners. This office applies a very deliberate approach to charging felonies, and our obligation in considering whether or not to commence a criminal prosecution is informed by factors beyond the existence of probable cause. We must also believe that a conviction can be obtained, unanimously, by a 12-person jury. Violations of policy and excessiveness of force would not necessarily be the controlling factor to a jury in light of an objective analysis of reasonableness in the use of force under the high burden of proof standard applied in a criminal case.”

The letter from Light concludes by stating the following:

“While we are disturbed by Deputy Balenger’s approach and are concerned that his actions may betray an endemic problem, a determination cannot be made on the one incident we were asked to review. Our determination should be viewed neither as exoneration or tacit approval of Deputy Balenger’s actions; it is only a finding that the filing of criminal charges are not appropriate based on the evidence. We, therefore, leave the matter of a recommendation for appropriate discipline of Deputy Balenger to you and the Sheriff’s discretion.”