Jury finds Orr not guilty

A jury acquitted a former Libby city councilor accused of driving dangerously close to a woman during a May property dispute following a day and a half trial in Lincoln County District Court this week.

Prosecutors charged Darrel “DC” Orr, 62, with felony assault with a weapon or, in the alternative, criminal endangerment following the May 19 run-in. Deputy County Attorney Jeff Zwang, who prosecuted the case, told jurors that in his mind Orr’s alleged behavior rose to the level of both crimes, but could only be convicted for one.

For his part, Orr has denied the allegations — at times publicly suggesting the charges were part of a political campaign against him — and did so again after taking the stand on Wednesday. Orr launched an ultimately doomed campaign for Libby City Council shortly after the charges were filed in the spring.

Not in question during the trial were the basic facts of the circumstances leading up to the alleged incident. In mid-May, according to court documents, Orr left a camper on Montana Sky property near City Service Road. After discovering the camper, employees of the Internet provider had it towed and later junked.

Following the tow, Orr drove down to the scene, where he came across Montana Sky employee Amber Holm talking on the phone while walking the road. From there, the accounts diverged.

Holm testified Tuesday that Orr roared past her in his pickup truck.

“It happened in an instant,” Holm said under questioning from Sean Hinchey, Orr’s defense attorney*. “It was scary. It was too fast and too close.”

Co-worker Randy Lindsey told the court that he heard the engine of Orr’s pickup rev up, “like he flooded it,” and heard Holm scream. When he looked up from where he was standing, he saw the truck going by her. He estimated Orr passed within a foot and a half of his colleague.

A third witness, Howard “Corky” Pape, maintenance supervisor for the City of Libby, was working nearby. While Pape did not see Orr close in on Holm, he did notice “somebody come [down the road] faster than I would think normal on a gravel road,” he said.

Orr presented a different version on the stand, telling the court he traveled down the road at between 10 and 15 miles per hour, giving Holm a wide berth after spotting her. When Zwang confronted him with the contradicting testimony given by witnesses during cross-examination, Orr described their accounts as inaccurate.

“The witnesses must be mistaken,” he said.

By the time Orr took the stand, his attorney already had poked holes in Holm’s and Lindsey’s testimonies, going so far as to suggest Holm might have committed a crime in having Orr’s camper towed.

Hinchey posited that Holm, with her back turned to Orr’s truck, had no way of knowing whether it was aimed at her. When Holm replied that the closeness of Orr’s truck indicated he was not trying to avoid her, Hinchey asked why she did not take more evasive action to get out of the way.

“And your testimony is that he was close to you — arms length — but you didn’t need to take any evasive measures to avoid being hit by him,” Hinchey said, pressing her.

Holm replied that she wasn’t preparing to dodge a vehicle and reiterated that Orr came upon her from behind.

Hinchey also grilled Holm on the form she filled out to have Orr’s camper towed, noting that she presented herself as the owner of the item in the paperwork. During his subsequent cross-examination of White, who recounted his investigation for the court, Hinchey mused whether Holm’s misrepresentation rose to the level of a crime, including theft.

Hinchey also pressed White on Lindsey’s account of the incident. While he eagerly gave an estimate of the distance between Orr’s vehicle and Holm on the stand, Lindsey omitted that detail in his interview with White in May.

“Today, he estimated the difference between Ms. Holm and the vehicle,” Hinchey prompted White.

“Yes,” White said.

“He never gave you a distance?” Hinchey asked.

“I do not believe he gave me a distance,” the veteran lawman replied. “No.”

As the state rested its case, Hinchey sought to have the charges against Orr dismissed, telling District Judge Matthew Cuffe that prosecutors could not meet the burden of proof. Cuffe denied the motion, saying his decision was not a reflection of the strength of the proof the state had presented, merely an acknowledgement that the state had provided evidence.

During his opening statements, Hinchey framed the case as a he said-she said situation and referred back to the form Holm had filled out, naming herself as the owner of the camper, as an indication of her trustworthiness.

“Really, only two people were present at the time of this, Ms. Holm and Mr. Orr. The credibility of both the parties are of utmost importance and the evidence showed that Holm signed the report, claiming the property,” Hinchey said. “That wasn’t true. … That was a false statement.”

Orr, though, slipped under oath, initially testifying that a piece of land between Montana Sky and city property was his before confirming it was actually owned by railroad giant BNSF.

He later testified that he leased the land from the railway, an agreement that went back 40 years. He told the court he reaffirmed the lease with BNSF after The Western News detailed a city-led cleanup operation of the property, which was littered with refuse, in late summer.

At that time, he told The Western News he could not explain why he had claimed the land as his in a criminal trespass warning given to Montana Sky employees earlier in the year. Neither Orr nor his counsel provided any evidence for the agreement other than his testimony at the trial.

Hinchey focused much of his effort early in the trial on the circumstances leading up to the dispute, delving into detail on the nature of the property dispute during cross examination of the state’s witnesses. He highlighted, for example, an effort by Lindsey to move two snowmobiles from the area around the property line bounding Montana Sky and the land claimed by Orr that same day.

During his time on the stand, Lindsey acknowledged being on scene to move the snowmobiles during the incident. He told the court he was hoping to avoid “issues” following the removal of the camper.

Hinchey also led Orr through his version of the lead-up to the incident. Orr described bringing the camper down in the hopes of cleaning up his leased property, but finding the path blocked by snowmobiles. He left the camper with a note on it, he said, and attempted to follow up with Montana Sky employees by phone in the days before they had it towed.

He received no reply, Orr said.

In his closing, Zwang sought to separate the property dispute from the incident sparking the felony charge, telling the jury that Orr’s anger was reasonable, but not his alleged actions.

“I know we’ve gone a little bit out off in the weeds talking about property lines and snowmobiles. The reality is this case isn’t really about that,” Zwang said. “The only way these property disputes are relevant to this case is the fact that the defendant’s camper trailer was towed. The camper trailer being towed and his reaction to that provides context to what happened … It explains why he acted that way. It explains why he was angry … But, ladies and gentlemen, it does not excuse the actions.”

Zwang returned to the three witnesses that had described Orr’s arrival on the scene, his closeness to Holm and the speed at which he allegedly was traveling. None of them had a reason for lying to the court, he said.

Zwang previously argued that, had Orr swung widely around Holm as he testified, his truck would have left some mark on the nearby grass. Earlier in the trial, he had pointed out one set of visible tire marks left on the gravel road while cross-examining Orr. Were those tire marks from the vehicle’s driver’s side, then the corresponding tires should have bent the grass adjacent to the road, Zwang insisted. But if they were marks from the passenger’s side, then Orr would have been very close to where all parties agreed Holm stood.

Zwang touched on the lack of marks in the grass again in his closing, saying there was no evidence for Orr’s version of events other than his word. The existing evidence, he argued, corroborated witness testimony.

“Think about the evidence as a whole and compare those differing points with the other evidence in the case and think about what evidence may corroborate different witness testimony,” Zwang said. “I would ask you to hold the defendant accountable for his actions and find him guilty.”

Hinchey, who earlier had countered the tire marks argument by noting that law enforcement vehicles parked at the scene during the investigation obscured the grass, described it as a red herring. Saying it pained him to critique law enforcement, he suggested the investigation could have been better handled.

He also suggested prosecutors went too far in filing an assault with a weapon charge. Careless driving, speeding, reckless driving, that may have fit the bill, he said, but not assault with a weapon.

The vehicle, he noted, never struck Holm.

The state lacked evidence beyond a reasonable doubt for its version of events, Hinchey argued before suggesting the entire incident was a cover-up of sorts for Montana Sky employees and painting Orr as a victim.

“The claims that [Orr] was driving his vehicle like a bat out of hell within close proximity to Ms. Holm is a bit of smokescreen,” Hinchey said. “Mr. Orr had just had his camper hauled off to the dump. As Randy Lindsey testified, he had gone down there for that purpose, hurrying up and moving those snowmobiles. They were stopped in the act — as our photographs show you folks — before they could remove those snowmobiles fully off of Mr. Orr’s property. Then the 911 call comes claiming Mr. Orr drove in this reckless manner. The state simply cannot prove either of the charges that they have presented you folks.”

It took just a few hours of deliberating for the jury to agree with Hinchey’s summation. They delivered the not guilty verdict shortly before 4 p.m. on Wednesday. It came nearly a month to the day from Orr’s resounding defeat at the ballot box.

*A review of court documents found that attorney Sean Hinchey did not represent Darrel “DC” Orr as a public defender as reported. Orr initially asked for a public defender and was appointed Jessica Polan. He hired Hinchey after his case was later reassigned to another public defender.