Kapps v. State: Reaffirming Strong Strickland Deference Despite Counsel’s Disbarment and Credibility-Opinion Cross-Examination

I. Introduction

In Kapps v. State, 2025 MT 295, the Supreme Court of Montana addressed a postconviction ineffective assistance of counsel (IAC) claim arising from a child sexual abuse conviction. The case sits at the intersection of several sensitive and technically demanding areas of criminal law:

Defense counsel’s tactical decisions in cross-examining a key law enforcement witness;
The propriety of eliciting testimony about credibility and guilt from an investigating officer;
The effect of counsel’s later disciplinary history and disbarment on an IAC analysis; and
The practical limits of postconviction review where former counsel refuses to participate.

The petitioner, Mark Kapps, was convicted in 2016 of sexual assault and sexual intercourse without consent against his seven-year-old niece, M.C., largely on the basis of her testimony, corroborated by DNA evidence linking his semen to a blanket she identified as being used during the abuse. His trial lawyer, David S. Freedman, was later censured, suspended, and ultimately disbarred in unrelated disciplinary matters. While Kapps’s direct appeal was unsuccessful, he then sought postconviction relief, claiming that Freedman’s cross-examination of the lead officer, Paul Sutter, was constitutionally ineffective.

The district court denied relief on both procedural and substantive grounds. On appeal, the State conceded that the petition was not procedurally barred, leaving the Montana Supreme Court to decide a single core issue:

Whether the District Court erred in denying Kapps’s petition for postconviction relief on the merits.

The Supreme Court affirmed, holding that:

Freedman’s cross-examination, though far from exemplary, fell within the “wide range of reasonable professional assistance” required by Strickland v. Washington; and
In any event, given the strength of the evidence—especially Kapps’s DNA on the blanket—there was no reasonable probability that any deficiency in his cross-examination altered the outcome.

Importantly, the Court rejected any suggestion that:

A defense attorney’s elicitation of credibility-related opinions from a State’s witness is per se deficient performance, or
Counsel’s later disbarment and refusal to respond in postconviction proceedings itself creates or proves ineffective assistance at trial.

In doing so, Kapps reinforces a robust presumption of competent performance under Strickland, clarifies the limits of prior decisions such as State v. Hayden and Heath v. State, and sets practical boundaries for IAC claims arising from counsel’s post-trial disciplinary troubles.

II. Summary of the Opinion

A. Holding

The Supreme Court of Montana affirmed the district court’s denial of Kapps’s petition for postconviction relief. Applying the familiar Strickland two-prong test, the Court held:

No Deficient Performance: Freedman’s cross-examination of Officer Sutter—though not exemplary—was a tactical effort to attack the integrity of the investigation and did not fall below an objective standard of reasonableness under prevailing professional norms.
No Prejudice: Even if Freedman’s performance were deemed deficient, there was no reasonable probability that the result would have been different. The jury had already seen Sutter’s interrogation video showing his belief in Kapps’s guilt, and the State presented powerful DNA evidence linking Kapps to the blanket identified by the victim.

B. Key Doctrinal Clarifications

The decision clarifies several important points:

Defense vs. Prosecutorial Conduct: The plain error analysis in State v. Hayden concerning prosecutorial elicitation of credibility testimony and vouching does not automatically translate to a finding of deficient performance when similar lines of questioning are pursued by defense counsel as trial strategy.
Disbarment and Postconviction Silence: An attorney’s later disciplinary history (censure, suspension, disbarment) and refusal to respond to a Gillham order or appear at an evidentiary hearing do not create a presumption of deficient performance in the earlier criminal trial.
Heath’s “unique circumstances” narrowed: Heath v. State, which required a hearing when counsel died before responding to IAC allegations, does not mean that counsel’s non-cooperation or unavailability in other circumstances automatically entitles a petitioner to relief or relaxes the Strickland burden.

III. Factual and Procedural Background

A. Underlying Offense and Investigation

On August 3, 2014, Kapps drove his fiancée, Miranda Thomas, to work at the Sagebrush Inn in Baker, Montana. Miranda’s sister, Stephanie Craig, managed the inn and lived on-site with her husband and three children, including M.C. (the victim). While Miranda worked, Kapps and his infant son spent the day at the Craig home, a typical arrangement on Miranda’s work weekends.

The next day, August 4, 2014, Stephanie contacted the Baker Police Department, reporting that seven-year-old M.C. had said that Kapps put his hand down her pants the previous day. The report moved through the family chain:

M.C. told her sibling, C.C.;
C.C. told Miranda;
Miranda told Stephanie; and
Stephanie alerted law enforcement.

Law enforcement:

Interviewed M.C., C.C., and Stephanie;
Collected physical evidence from the Craig home; and
Arranged for a Sexual Assault Nurse Examiner (SANE) exam for M.C.

Officers Paul Sutter and Justin LaCroix interviewed Kapps. The interview was recorded and later played for the jury. Throughout, Kapps denied touching M.C. Sutter, however, repeatedly confronted him with accusatory statements such as:

“we pretty much have the picture drawn,”
“we’ve heard [M.C.’s] story and we believe it,”
“7-year-olds don’t make up stories,”
“we know who did it,” and
“be a man, take responsibility.”

Several days later, Stephanie contacted police to retrieve a stained Toy Story blanket that M.C. had identified as the blanket Kapps used to cover them while touching her. A December 31, 2014 Serology/DNA report from the State Crime Lab concluded that the major DNA profile from the blanket matched Kapps’s DNA.

B. Trial and Conviction

On March 27, 2015, the State charged Kapps with:

Sexual assault, § 45‑5‑502, MCA, and
Sexual intercourse without consent, § 45‑5‑503, MCA,

based on the alleged molestation of M.C.

Kapps, represented by privately retained counsel David S. Freedman, pleaded not guilty. A four-day jury trial began on February 9, 2016. The State presented:

Testimony from M.C. and various family members,
Law enforcement testimony, including Officer Sutter, and
Crime lab testimony regarding DNA evidence on the Toy Story blanket.

The prosecution played the recorded interrogation of Kapps conducted by Sutter. The jury thus saw first-hand Sutter’s accusatory approach and his stated belief in M.C.’s credibility and Kapps’s guilt.

1. The Cross-Examination of Officer Sutter

Freedman’s cross-examination of Sutter is the heart of the postconviction claim. Key aspects include:

When Sutter decided Kapps was guilty: Sutter testified he considered Kapps guilty about 13 minutes into the interview, after Kapps stated he did not watch or touch M.C. while she dressed. Sutter characterized this as a “submind confession.”
“Red flag” on naming family members: Sutter viewed it as a red flag that Kapps listed other family members and their children before mentioning M.C. by name.
Honesty assessment: When asked about Kapps’s cooperation, Sutter stated that although Kapps was willing to talk, the interview “didn’t have a flow of honesty to it” and that Kapps was “acting” when he appeared to cry at the end.
Training vs. presumption of guilt: Freedman pressed Sutter on whether forming a conclusion of guilt so early in the investigation comported with his training. Sutter responded with statements suggestive of a reversed presumption of innocence, such as:
– “if there’s no evidence to point you elsewhere then uh, guilt is guilt”; and
– “If you[’re] innocent you[’re] gonna have to prove your innocence and if that’s what you can do to prove your innocence.”
Seven-year-olds and “making up stories”: Sutter testified that seven-year-olds do not typically make up detailed stories like M.C.’s and that “we believed M.C. to be truthful” at the time of the interview.

Freedman’s clear tactical line was to portray Sutter as having formed a premature and biased conclusion, influenced by assumptions that children do not lie about such matters and by an inverted understanding of the burden of proof.

2. Closing Argument Themes

In closing, Freedman argued that Sutter’s mind was “made up right off the bat,” that he viewed Kapps through a “prism” of guilt, and that his status as the most senior officer with child case experience meant his tunnel vision infected the investigation. The defense theory was: an investigation shaped from the outset by an assumption of guilt, rather than a neutral search for the truth, led to an unjust focus on Kapps.

The jury convicted Kapps on both counts. On direct appeal, the Montana Supreme Court affirmed in a noncitable decision. (State v. Kapps, No. DA 16‑0513, 2017 MT 207N.)

C. Postconviction Proceedings and Freedman’s Disbarment

On August 22, 2018, Kapps filed a petition for postconviction relief. While that petition was pending, Freedman’s disciplinary history culminated in disbarment:

2016 – Public censure for violations of several Rules of Professional Conduct, including competence (Rule 1.1), diligence (1.3), communication (1.4), termination of representation (1.16(d)), and fairness to opposing party and counsel (3.4(d)).
2018 – Seven-month suspension for failing to file a timely appeal at a client’s request and failing to appear at a hearing on a client’s motion.
2019 – Disbarment, after he failed to respond to a client complaint, leaving the Commission on Practice unable to determine the reasons for his conduct.

On August 2, 2021, Kapps filed an amended postconviction petition, alleging:

Freedman was ineffective in failing to challenge M.C.’s competency and to effectively cross-examine her; and
Freedman was ineffective in his cross-examination of Sutter by eliciting improper and damaging credibility testimony about both M.C. and Kapps.

The district court ordered the State to respond and set an evidentiary hearing. It also:

Issued a subpoena compelling Freedman’s attendance at the hearing; and
Entered a Gillham order authorizing and directing Freedman to respond to IAC allegations, including disclosure of otherwise privileged information.

Freedman avoided service, failed to respond to the Gillham order, and did not appear at the June 13, 2023 hearing. Despite his absence, the hearing went forward, giving Kapps the opportunity to present non-record evidence.

On September 22, 2023, the district court denied postconviction relief, finding the claims both procedurally barred and meritless. On appeal, the State properly conceded there was no procedural bar; the Supreme Court therefore confined itself to the merits.

IV. Precedents and Authorities Cited

A. Strickland v. Washington and its Montana Applications

The Court reiterates that ineffective assistance claims are governed by the federal standard in Strickland v. Washington, 466 U.S. 668 (1984), adopted in Montana in cases like State v. Racz, 2007 MT 244, and Whitlow v. State, 2008 MT 140.

The two Strickland prongs:

Deficient performance: Counsel’s performance must fall below an objective standard of reasonableness under prevailing professional norms, in light of all the circumstances.
Prejudice: There must be a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different—a probability sufficient to undermine confidence in the outcome.

The Court emphasizes several settled corollaries:

The right to counsel is the right to effective assistance under both the U.S. and Montana Constitutions (U.S. Const. amend. VI; Mont. Const. art. II, § 24).
A court may reject an IAC claim on either prong; failure to establish one obviates the need to analyze the other.
A “strong presumption” attaches that counsel’s conduct falls within the wide range of reasonable professional assistance, and a defendant bears a “heavy burden” to overcome that presumption.

The opinion particularly leans on Whitlow, which instructs courts to avoid hindsight bias and to evaluate counsel’s decisions from counsel’s perspective at the time, and on the U.S. Supreme Court decisions Burt v. Titlow and Dunn v. Reeves, both reinforcing the presumption of competence and the limits on inferring deficiency from a silent or unexplained record.

B. State v. Hayden and Prosecutorial Vouching

Kapps’s central doctrinal argument relied on State v. Hayden, 2008 MT 274. In Hayden:

Two prosecution witnesses recanted at trial their prior statements to detectives.
On rebuttal, the prosecutor asked the detective whether he believed the prior statements were true and which set of statements—interview or trial testimony—he found more believable.
The detective vouched for the earlier statements’ truthfulness.
In closing, the prosecutor further vouched for the detective’s credibility (“believable,” “you can rely on them”) and for the integrity of the investigation.

This Court in Hayden held that the prosecutor’s cumulative conduct constituted plain error, invading the jury’s exclusive role in determining credibility and undermining the fundamental fairness of the trial.

In Kapps, the petitioner argued that if eliciting opinion-of-credibility testimony from law enforcement and vouching for those opinions is serious enough to be plain error when done by the prosecutor, then a defense attorney who invites similar opinion testimony necessarily falls below the standard of reasonable performance under Strickland.

The Court, however, distinguishes Hayden on two fronts:

Source and purpose of the conduct: In Hayden, the misconduct was prosecutorial, undertaken to bolster the State’s case and the State’s witnesses. In Kapps, the challenged questions were asked by defense counsel, aimed at impeaching the integrity and neutrality of the investigation.
Cumulative misconduct vs. isolated questioning: Hayden involved multiple instances of misconduct (improper elicitation of testimony plus improper closing argument) whose cumulative effect undermined fairness. In Kapps, there was no similar compounding of improper State conduct, and defense counsel’s questions were tethered to an attack on investigative bias.

Moreover, the Court notes that Freedman never asked Sutter to opine on the truthfulness of in-court testimony by Kapps or M.C.; he asked about Sutter’s beliefs “at the time of the interview.” That temporal and contextual distinction helped the Court avoid treating the cross-examination as direct vouching in the Hayden sense.

C. Heath v. State and Counsel Unavailability

Kapps also relied heavily on Heath v. State, 2009 MT 7, arguing that Freedman’s disbarment and refusal to respond to the Gillham order should operate in his favor under Strickland.

In Heath:

The petitioner asserted numerous IAC claims, but the record did not reveal counsel’s reasoning.
The district court recognized that counsel’s response was necessary and ordered one, but counsel died before responding.
The court then denied an evidentiary hearing as “not helpful” because counsel was dead, leaving the petitioner with no avenue to develop the factual basis of the claims.

On appeal, this Court called counsel’s death a “unique circumstance” and held that it should not become an “insurmountable barrier” to the petitioner’s efforts to meet the Strickland burden. The Court reversed and remanded for an evidentiary hearing, emphasizing the need for some alternative means of inquiry into counsel’s reasoning.

In Kapps, by contrast:

An evidentiary hearing was actually held.
Although Freedman refused to cooperate, his unavailability did not wholly deprive Kapps of a forum to present evidence.
The Court expressly rejects the notion that counsel’s non-cooperation entitles a petitioner to relief or even to presumptions relieving him of his Strickland burden.

The Court thus confines Heath to its narrow context—where counsel’s death and a denial of hearing together created an absolute bar to developing the record. Here, by contrast, the Court views the record as sufficiently developed and reiterates that Strickland does not shift the burden simply because counsel is later disbarred or unresponsive.

D. In re Gillham and Marble v. State

The Court briefly references In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985), and Marble v. State, 2007 MT 98, to explain the function and effect of a “Gillham order.”

A Gillham order is a judicial directive authorizing former defense counsel to respond to IAC allegations and to reveal otherwise privileged communications to the extent necessary for the court to ascertain the truth of those allegations. In exchange, counsel is immune from discipline or malpractice liability for information necessarily disclosed.

In Kapps, the district court entered such an order, giving Freedman full authority and protection to respond. His refusal to do so, however, did not, in the Court’s view, alter the Strickland presumption or ease Kapps’s burden.

E. Other Citations

Stock v. State, 2014 MT 46 – Standard of review for denial of postconviction relief (clearly erroneous for findings of fact, correctness for legal conclusions).
State v. Racz, 2007 MT 244 – Reaffirms Strickland as the governing IAC standard.
Whitlow v. State, 2008 MT 140 – Details the application of Strickland in Montana and emphasizes avoidance of hindsight bias.
State v. Aker, 2013 MT 253 – Emphasizes cumulative effect analysis in evaluating prosecutorial misconduct; cited in connection with the Hayden distinction.
Burt v. Titlow, 571 U.S. 12 (2013) – Stresses that the absence of evidence about counsel’s reasoning cannot by itself overcome the strong presumption of reasonable performance.
Dunn v. Reeves, 594 U.S. 731 (2021) – Reiterates that courts may not find IAC merely because the record is silent on counsel’s reasoning; a court must not assume unreasonableness simply from a lack of explanation.

V. The Court’s Legal Reasoning

A. Strickland’s First Prong: Deficient Performance

1. The Presumption of Reasonable Strategy

The Court starts from the central Strickland premise: counsel is presumed to have acted reasonably and strategically. Tactical decisions—even if debatable or imperfect in hindsight—do not constitute deficiency unless “no competent lawyer would have chosen” that approach (Dunn v. Reeves).

Applied to Freedman’s cross-examination, the Court views his approach as a recognizable strategy: avoid direct attacks on a child victim’s character and instead attack the neutrality and quality of the investigation.

Freedman’s tactical choices included:

Highlighting how quickly Sutter decided Kapps was guilty;
Drawing out Sutter’s view that children rarely fabricate such allegations, to argue Sutter was predisposed to believe M.C.; and
Forcing Sutter to articulate attitudes inconsistent with the presumption of innocence (e.g., “if you[’re] innocent you[’re] gonna have to prove your innocence”).

The Court notes that the jury already saw Sutter’s apparent bias on the interrogation video, including his explicit statements that “we know who did it” and “7-year-olds don’t make up stories.” Freedman’s cross-examination, thus, did not newly expose the jury to Sutter’s belief but used that belief as a platform to question Sutter’s investigative objectivity.

2. Distinguishing Hayden and the “Credibility Opinion” Issue

Kapps argued that by asking Sutter whether he believed M.C. at the time and why he considered Kapps guilty, Freedman effectively invited improper credibility and guilt opinions. The Court responds in two key ways:

Different procedural posture and actor: Hayden dealt with plain error review of prosecutorial misconduct whose purpose was to improperly bolster the State’s case. Here, the actor is defense counsel, not the prosecutor; the inquiry is whether that lawyer’s strategy was so unreasonable that it fell below professional norms.
Limited scope of the questioning: Freedman’s questions were framed around Sutter’s investigative beliefs at the time of the interview, not about the truthfulness of in-court testimony or about how the jury should decide credibility. This allowed Freedman to argue that Sutter’s conclusions rested on bias, assumptions, and reversed burdens, rather than a full investigation.

While this line of questioning did elicit damaging remarks (“we believed M.C. to be truthful”; Kapps’s interview lacked a “flow of honesty”), the Court holds that such risk does not transform a conscious tactical choice into constitutional ineffectiveness.

3. Counsel’s Use of Non-Leading Questions

Kapps further criticized Freedman for not using leading questions on cross-examination, arguing that this departure from a common cross-examination technique was itself indicative of deficient performance.

The Court bluntly rejects this as a basis for IAC, noting that Kapps:

Offered no legal authority that the use of non-leading questions on cross is contrary to prevailing professional norms; and
Presented no expert testimony establishing that Freedman’s approach violated the standard of care for defense counsel.

Even if Freedman’s questioning technique was ill-advised, the Court emphasizes that not every suboptimal tactic violates the Constitution; only those outside the range of reasonable professional assistance do so.

4. Disbarment and Non-Participation Do Not Prove Deficiency

Kapps argued that Freedman’s disbarment and refusal to comply with the Gillham order or attend the evidentiary hearing should “weigh in favor” of a deficiency finding. The Court firmly rejects any per se or quasi-per se inference.

Key points:

No per se ineffectiveness from disciplinary history: An attorney’s misconduct in other, unrelated matters—however serious—does not, without more, establish deficient performance in this case.
No automatic penalty for non-cooperation: Freedman’s refusal to respond to the Gillham order or appear does not create a presumption of deficiency. The petitioner still bears the burden of establishing both Strickland prongs on the existing record and evidence.
Heath’s “unique circumstance” distinguished: Unlike in Heath, Kapps had an evidentiary hearing and an opportunity to present non-record evidence. There was no “insurmountable barrier” to relief comparable to a total denial of any fact-finding mechanism.

Citing Burt v. Titlow and Dunn v. Reeves, the Court underscores that the mere absence of counsel’s explanation cannot overcome the presumption of reasonableness: “It should go without saying that the absence of evidence cannot overcome [it].”

Ultimately, the Court concludes that, even if Freedman’s later professional failings and unresponsiveness are troubling, they neither:

Automatically demonstrate that his trial performance was deficient; nor
Lower or shift the burden imposed on a petitioner by Strickland.

Thus, Freedman’s performance at trial, including his cross-examination of Sutter, is “entitled to the presumption of sound trial strategy.”

B. Strickland’s Second Prong: Prejudice

Although the Court could have rejected the IAC claim solely on the deficiency prong, it also analyzed prejudice and found it absent.

1. The DNA Evidence

The Court highlights the strength of the State’s physical evidence:

M.C. identified a specific Toy Story blanket that Kapps allegedly used to cover them during the abuse.
The Crime Lab’s serology/DNA testing revealed that the major DNA profile on the blanket matched Kapps’s DNA.
Expert testimony from Joseph Pasternak indicated that the probability of the DNA coming from someone other than Kapps was 1 in 21.9 quintillion Caucasians—a vanishingly small statistical likelihood.

This forensic evidence powerfully corroborated M.C.’s account and materially undercut Kapps’s claim that the outcome turned on a delicate credibility balance that Freedman’s cross-examination improperly tilted.

2. The Interrogation Video Was Already Before the Jury

The Court notes that the jury had seen the entire video of Sutter’s interrogation of Kapps before the cross-examination. That video already contained:

Sutter’s direct assertions that he believed M.C.;
Statements like “7-year-olds don’t make up stories” and “we know who did it”; and
A confrontational tone affirming Sutter’s conviction that Kapps was lying.

Thus, the jury already knew Sutter believed Kapps was guilty and M.C. truthful. Freedman’s questions did not introduce a new theme; they simply elicited Sutter’s explanation of why he believed that, which Freedman then tried to use to show investigative bias and improper assumptions.

3. No Reasonable Probability of a Different Outcome

Given:

The persuasive DNA evidence connecting Kapps to the blanket identified by M.C.;
The prior exposure of the jury to Sutter’s belief in the interrogation video itself; and
The broader evidentiary record supporting the conviction,

the Court holds there is no “reasonable probability” that any error in Freedman’s cross-examination of Sutter changed the verdict. The evidence against Kapps was simply too strong.

Therefore, Kapps also failed the second Strickland prong: he did not show a probability sufficient to “undermine confidence in the outcome.”

VI. Impact and Significance

A. Reinforcing a High Threshold for IAC Claims

Kapps reaffirms that Montana courts will apply Strickland with considerable deference to trial counsel, even in emotionally charged child sexual abuse cases. The Court:

Emphasizes that tactical decisions—such as whether to attack the child victim directly or instead focus on law enforcement’s investigation—are generally within counsel’s discretion;
Refuses to transform risky tactics into constitutional violations merely because they yield damaging testimony; and
Holds fast to the presumption of competence, particularly where the record does not affirmatively show that “no competent lawyer” would have chosen the strategy used.

B. Defense Cross-Examination of Law Enforcement on “Credibility” Themes

While Hayden remains a warning to prosecutors against eliciting credibility opinions and vouching during closing, Kapps clarifies that defense counsel’s use of similar lines of inquiry can be a legitimate strategic choice and is not ipso facto unreasonable.

For defense practice, the case underscores:

Defense lawyers remain free—as a matter of constitutional adequacy—to explore officers’ beliefs and biases, even if that entails some risk of reinforcing the officer’s belief in the defendant’s guilt.
Postconviction challenges to such cross-examination will face a steep uphill battle absent compelling evidence that the approach was clearly outside professional norms.

C. Limited Effect of Counsel’s Disbarment on IAC Analysis

Kapps is especially important in clarifying that:

Later professional discipline (including disbarment) does not retroactively transform counsel’s trial performance into deficient representation; and
Counsel’s refusal to assist in postconviction litigation—while problematic systemically—does not shift the Strickland burden or create a presumption of ineffectiveness.

Future petitioners should not rely on counsel’s disciplinary history alone to support IAC claims. They must still:

Identify specific decisions or omissions at their own trial; and
Prove both that these fell below prevailing norms and that they reasonably probably affected the outcome.

D. Clarifying the Reach of Heath v. State

By distinguishing Heath, the Court signals that:

Heath is primarily about procedural fairness—ensuring a meaningful opportunity to develop IAC claims where counsel’s death and lack of hearing otherwise bar factual development; and
Heath does not alter substantive Strickland standards or create any new presumption of deficiency when counsel is otherwise unavailable or uncooperative.

Postconviction courts must ensure that petitioners have some avenue to present evidence (e.g., an evidentiary hearing), but once that is provided, the heavy burden remains firmly on the petitioner.

E. Practical Effect on Montana Postconviction Practice

In practical terms, Kapps likely will be cited:

Against IAC claims premised mainly on counsel’s later disciplinary record or reputation;
Against arguments that the mere absence of counsel’s explanation on the record (especially after a Gillham order) justifies inferring deficiency; and
In child sex offense cases where defense counsel attacks investigative bias rather than aggressively attacking the child witness, as evidence that such a choice can fall within the broad spectrum of reasonable strategy.

VII. Simplifying the Key Legal Concepts

A. Ineffective Assistance of Counsel (Strickland)

To win an ineffective assistance claim, a defendant must prove:

Lawyer’s performance was unreasonably poor: Another reasonably competent criminal defense attorney, facing the same situation, would not have acted as this lawyer did.
That poor performance mattered: There is a reasonable chance that, if the lawyer had performed adequately, the trial outcome would have been different.

The law assumes lawyers generally act reasonably and strategically. The defendant must overcome that assumption with concrete evidence; simply pointing to a later bad result (like a conviction or a disciplinary sanction) is not enough.

B. Plain Error vs. Ineffective Assistance

Plain error and ineffective assistance are separate doctrines:

Plain error: Used on direct appeal when a party did not object at trial. It focuses on serious, obvious errors by the court or prosecutor that affect fundamental rights and the integrity of the proceedings, such as in Hayden.
Ineffective assistance: Typically raised in postconviction proceedings and focuses on defense counsel’s performance under Strickland.

In Kapps, the Court emphasizes that conduct serious enough to be plain error when committed by a prosecutor does not automatically become constitutionally deficient performance when engaged in by a defense attorney, whose role and objectives differ.

C. Postconviction Relief in Montana

Postconviction relief is a separate proceeding after direct appeal, allowing a convicted person to challenge the conviction on limited grounds, including:

Ineffective assistance of counsel;
Newly discovered evidence; or
Certain constitutional violations not fully reviewable on direct appeal.

The petitioner carries the burden of proof and must rely largely on the existing record plus any additional evidence presented at a postconviction hearing.

D. Gillham Orders

A Gillham order allows a court to direct former defense counsel to respond to IAC allegations, overriding attorney-client privilege but protecting counsel from disciplinary or malpractice consequences based on the necessary disclosures. It is a tool to:

Let the court learn why counsel made particular decisions; and
Ensure fairness when a defendant attacks counsel’s performance.

In Kapps, such an order issued, but Freedman refused to respond. The Court holds that this refusal does not alter the defendant’s burden under Strickland.

E. “Vouching” and Credibility Opinions

Vouching occurs when:

A prosecutor tells the jury that a witness is truthful or particularly reliable; or
Witnesses are asked to opine directly on whether another witness is telling the truth.

This is problematic because it invades the jury’s exclusive role to decide who is credible. In Hayden, such vouching contributed to plain error.

In Kapps, although Sutter did testify about believing M.C. to be truthful at the time of the interview, this was elicited by defense counsel as part of an effort to portray Sutter as biased and to attack the investigation. The Court treats this as strategic impeachment rather than impermissible vouching by the State.

VIII. Conclusion

Kapps v. State underscores the resilience of the Strickland standard in Montana and the judiciary’s reluctance to second-guess defense tactics in hindsight, even when those tactics carry obvious risks and are later associated with an advocate who has been disbarred.

The key takeaways are:

The bar for proving deficient performance remains high; the presumption that counsel acted reasonably is robust, and courts will not treat later disciplinary sanctions or non-cooperation as proof of ineffectiveness at trial.
Defense counsel’s efforts to impeach law enforcement through questions that touch on credibility and guilt can constitute a reasonable strategic choice, not a constitutional violation.
Prejudice under Strickland is particularly difficult to establish where there is strong corroborative physical evidence, such as DNA overwhelmingly linking the defendant to instrumental objects identified by the victim.
Heath and Hayden remain important but are confined to their specific contexts: Heath to procedural access and the need for a hearing in the face of counsel’s death; Hayden to prosecutorial misconduct and plain error review.

By affirming the denial of postconviction relief, the Montana Supreme Court in Kapps sends a clear message: even when trial counsel’s later professional record is deeply troubled, and even when tactical choices appear debatable, a petitioner must still meet both demanding prongs of Strickland. The decision provides a detailed, modern reaffirmation of deferential IAC review in Montana, particularly in cases involving alleged child sexual abuse backed by strong forensic evidence.