Nothing good happens after 10 p.m.

My sister often asks me “What is the most interesting case you have going?”

Of course, I cannot give any names (not to protect the innocent, but to protect the guilty), but it seems there is never a lack of “interesting” cases. Some time ago I had a case that showed the undesirable underbelly of our  community.

This was a set of circumstances I, who has lived here all my life, knew nothing about.

To begin this discussion, I set curfews in criminal release orders at 10  p.m., often stating: “Nothing good happens after 10 p.m.” Songwriters seem to know this as well.  

For instance:

Allan Jackson: “It’s midnight in Montgomery … smell of whiskey in the air.”

Abba, singing of Midnight Specials: “And before you know it, you are prison bound.”

Journey writes in the terrific song: “Don’t Stop Believing” about “the small town girl” taking the “midnight train going anywhere … a smell of wine and cheap perfume.”

Truly, not much good happens after 10 p.m., let alone after midnight.

Yet, here in Billings we have a sometime business called the “After Hours Club.” It seems there is a group of 20- and 30-year olds who start the party bell after the bars close at 2 a.m. This is staggering to me, as I cannot even stay up past midnight, let alone start the party at 2 a.m.

The case that was in front of me involved an alleged rape of a young woman at a large building in midtown Billings. This building was rented for the weekend by an entrepreneur, who, for a cover charge, plays music through some pretty good sound equipment so our young socialites can dance. No drugs, including alcohol, allowed inside. So far, so good.  After all, who can begrudge young people an opportunity to dance and have fun together?

Unfortunately, outside in the parking lot, a fair amount of drinking, drugging and general partying goes on, with all the usual outcomes — including fights, sexual assaults and general mayhem.The police stop by often.

One interesting aspect of this case, which went to a jury trial, is nearly every witness had a nickname such as Oso, TT, Tiger, Bug, Dart, Nitty, Pops and a few others who I won’t name as they were main players in the facts leading up to the charge and undoubtedly would rather not even have their nickname in the newspaper.

The ones I named were just there, were witnesses, but were not part of the controversy.

In any case, the testimony at trial established that between 60 and sometimes up to 300 people meet between 2 and 5 a.m. for the after-hours party.  Believe me when I tell you this is not a place you would want your daughter to hang out at. It reminded me of an atmosphere that you might find in a much larger city. Imagine the good, the bad and the ugly of that atmosphere.

While I am sure the vast majority are there just to have a good time, there are others, with too much alcohol or other drugs on board, who take the fun out of the evening very quickly. In the case in front of me, the alleged victim was either pulled into, of went willingly, into one of the side rooms. Both the defendant and the alleged victim agree they had sex, the issue was the classic he said-she said — where he said everything that happened was consensual, and she said it was not. This is a tough case.  DNA does not prove anything, other than what we already know — something happened.

In the end, the jury acquitted the defendant. I, and I suspect everyone in the courtroom, felt terrible for the alleged victim. However, under the circumstances, the jury made the right decision. You see, 12 people have to be convinced “beyond a reasonable doubt” the crime of sexual intercourse without consent occurred. That is a steep burden. In this case, that burden was not met.  

At the end of the day, this is a sad case. Interesting, though, we have a spot in our wonderful city that fires up at 2 a.m. And while I am young enough to know most young people go there simply to have a good time, I am old enough to know I don’t want my young adult children to be there.

(Judge Russell Fagg has been a district court judge for over 21 years, and has handled more than 25,000 cases. Fagg is a past president of the Montana Judges Association).