Charges stand in Holtz homicide case

By: 
Marlo Pronovost
Thursday, January 10, 2019

A former Absarokee man charged in a 2013 negligent homicide case has lost a bid to have the case dismissed.

Michael Holtz had asked a district judge to dismiss the case against him based on insufficient probable cause for the charges and improper refiling of the charges after prosecutors had dismissed them without prejudice.

In a ruling issued at the end of December, District Judge Blair Jones denied both motions.

WHAT THE DEFENSE MOTIONS ALLEGED

Defense attorneys Vernon and Cammi Woodard argued that there was not sufficient probable cause to file the charges and also that charges were not properly refiled.

In Judge Jones’s ruling regarding the matter of probable cause, Jones wrote that “a prosecutor may commence a case by applying to the District Court for leave to file an information. The application must be supported by an affidavit, which shows evidence sufficient to establish probable cause to believe that an offense has been committed by the named defendant. The affidavit does not have to establish a prima facie case, but merely the probability that the defendant committed the offense.”

In a nutshell, the fact that Jones had granted the prosecution’s motion to file an affidavit against Holtz meant there was sufficient probable cause for the case to advance to trial.

Regarding the matter of improper refiling of the charges, Holtz argued the charges should not have been refiled because no new evidence had been discovered since charges had been dismissed without prejudice.

“Holtz cites cases from other jurisdictions supporting the rule that a dismissal based upon lack of proof beyond a reasonable doubt is a bar to refiling the same charges unless substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at or prior to the time of termination,” Jones wrote in his ruling.

Jones notes that none of the cases Holtz cites are relevant in Montana and that there is “no controlling Montana authority on this issue.”

The fact that prosecutors first dismissed the case without prejudice meant the case could be filed again, regardless of new evidence.

“Provided there is sufficient probable cause to justify granting leave to file an information ill the first instance, the Court finds no Montana legal authority barring the refiling of charges absent new evidence and Holtz cites none,” Jones wrote.

Jones further noted that in the Holtz case, different prosecutors have different opinions as to whether the evidence is sufficient to convince a jury.

THE CASE

Holtz is charged with the negligent homicide of 27-year-old Forest Dana, who was found by family members in the alley directly behind the family home in Absarokee in the early morning hours of July 28, 2013. A medical examiner determined that Dana was killed when his spinal cord was severed as the result of being run over by a vehicle, according to court documents.

Charges were initially filed by Stillwater County Attorney Nancy Rohde in 2014. In 2016, those charges were dismissed without prejudice when Rohde determined that she did not have witnesses that could positively identify Holtz at trial.

In July 2018, the Montana Attorney General’s Office refiled the negligent homicide and tampering with evidence charges, as well as adding a third felony — failure to remain at the scene of an accident involving another person.

Montana Assistant Attorney General Chad Parker is trying the case without Rohde.

In the new charging documents filed by Parker, it does not appear that he has the same concerns Rohde had about being able to place Holtz at the scene of the crime.

Multiple witnesses told investigators the identical Holtz twins could be distinguished by their facial hair — specifically, that Michael Holtz was normally clean-shaven, as opposed to his twin brother, according to the new court documents.

Several witnesses also describe seeing a small blue car speeding in the area. At least two people positively identified Holtz as being in his car speeding near the alley.

At least one person told investigators that he saw a vehicle being driven approximately 80 mph by the Holtz twin “without facial hair,” according to the new documents filed by Parker.

One person told investigators she was with Holtz’s twin around midnight, and that Michael Holtz was not with them. At that same time, Holtz was reportedly seen standing off the roadway in the trees and had a conversation with a man who knew him, according to court documents.

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