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Judge substitution denied for accused killer

POLSON – A man is set to be tried before a judge in Polson this September for allegedly killing his father-in-law in a vicious March 2014 attack with a claw hammer. 

The Montana Supreme Court on Aug. 7 denied a request for a judge substitution made by public defenders on behalf of Desmond Alan Mackay, 36. 

Mackay is accused of hiding behind a garage door before attacking his father-in-law John Barrows, 67, with a hammer in March 2014. Barrows died 10 days after the attack. Mackay told investigators that he meant to attack his brother-in-law instead. 

After being charged with deliberate homicide originally, prosecutors and defense attorneys agreed to reduce the charge to mitigated homicide in a plea bargain, with a suggested 40-year-sentence to Montana State Prison without parole restrictions. 

Judge Deborah Kim Christopher denied the plea agreement, saying that lying in wait to ambush someone is a factor that can be considered an aggravating circumstance for which a homicide charge is made in a case. 

“My concern in this matter is this is charged as a deliberate homicide,” Christopher said at a June 18 hearing. “One of the penalties, although it was waived by the state, is the death penalty, and the death penalty requires the court to look at aggravating and mitigating circumstances. And while it has been waived in this case, all of the factors in this matter indicate that the defendant did lie in wait and ambush an individual. He ambushed the wrong individual and he’s admitted to that to his credit. But the argument that was made to the court was essentially a self-defense argument based on this long-term animosity between the two parties — well, between the defendant and the intended victim … This case, especially in view of the conflicting experts and the circumstances of the event, is a case that demands the review of our community and the evaluation of a jury as to the facts.” 

But the defense attorneys for Montana Public Defender Major Crimes Office alleged that Christopher knew the victim, was personally biased, and should not be handling the case. The defense listed no rationale for their allegation that Christopher knew the victim. 

The Montana Supreme Court quashed the attempt to get a new judge in the case. 

“The affidavit in support of the present request is based solely on Judge Christopher’s rulings and actions in the present case, which can be addressed in an appeal from the final judgment,” Montana Supreme Court Chief Justice Mike McGrath said. “As a result, it is unnecessary to appoint a district judge to hear this matter.” 

A jury trial is set to begin Sept. 28.

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