MTACDL - Lawyers of the Year

David Ness

The following was written by Tony Gallagher, Executive Director of the Federal Defenders of Montana, nominating David for the 2017 Timer Moses Award as MTACDL's 2017 Lawyer of the Year:

As we dutifully represent clients, we endeavor to assure that the adversarial clash is of respectful, independent, and equal forces (prosecution and defense) before a fair and impartial judiciary. Only then can we realize the triumph of justice and the resulting faith of society in its government and institutions. While sometimes thwarted in that effort, we do not shirk our collective responsibility to try. Demonstrating unswerving devotion to that coveted goal, Assistant Federal Defender David F. Ness ventured into the federal courtrooms throughout Montana and the Ninth Circuit on numerous occasions and persevered against sometimes incredible odds. In calendar year 2017, David had nothing short of phenomenal success in matters that rarely engender publicity or even more than passing notice.

The majority of David’s practice in 2017 focused on federal habeas corpus cases; the bulk of those dealt with claims arising from the Supreme Court’s decision in Johnson v. United States, Johnson v. United States, 135 S. Ct. 2551 (2015), which held the residual clause in the Armed Career Criminal Act is void for vagueness. Ruled to be retroactive, new clients assigned to the organization and numerous former clients could achieve a significant reduction in sentence if successful in a 28 U.S.C. § 2225 petition. The judges of our district have ruled on all of our nearly 70 Johnson/ACCA cases. David achieved favorable rulings in each of them. All of those clients were resentenced this year. Most were released on time served. The amount of time cut from their sentences, in aggregate, totals about 635 months or 53 years. In non-Johnson matters, both under 28 U.S.C. § 2255 and §2254, David was equally successful.

In all of his cases, whether trial, appeal or habeas, David’s research is impeccable, his writing style effective and and his arguments concise. David clearly knows how to identify issues and when to press forward with potentially successful avenues of attack. He takes on matters that most lawyers avoid – seemingly insurmountable facts and adverse case law. With little to work with, David crafts convincing legal strategies. David’s advocacy has been praised by both the Circuit and District Courts. He communicates clearly and succinctly with his clients, but tries to convey the harsh reality of their situation in a gentle, yet straightforward manner.

While the results in these cases may not have been celebrated or newsworthy, for the clients he represented they were nothing less than life-saving. The commitment, diligence, and innovation David exhibited throughout his career as an advocate for the poor is embodied in the work over the past year on behalf of the Johnson case habeas corpus litigants. He is a worthy candidate for the Timer Moses Award as MTACDL’s 2017 Lawyer of the Year.

A 1985 graduate of Montana State University, David received his law degree (cum laude) from the University of Montana School of Law in 1989. He was honored as the Montana Trial Lawyer of the Year (1997-98) for his work on the prison riot cases and is a twice-published legal author. David began work as an Assistant Federal Defender with the Federal Defenders of Montana in the Great Falls office in 2000. He had been in private practice in Montana from 1991 through 1997, during which time he was a member of the Criminal Justice Act panel, then served as an Assistant Federal Defender with the Federal Defender Service for Eastern Tennessee, Inc., in Chattanooga. David was a Judicial Law Clerk to the Honorable Russell C. McDonough of the Montana Supreme Court (1989-91).

David is an outstanding lawyer. His work over the past year has been extraordinarily successful at both the trial and appellate levels. The pivotal decisions in the Johnson cases featured in this nomination memorandum are only the most prominent examples of his efforts. He has achieved trial wins, litigated for fair sentences, obtained dismissals, and has earned the respect and thanks of his clients. His ‘can do’ attitude is an asset to this organization, the criminal defense bar, and the Montana Association of Criminal Defense Lawyers.

I nominate David F. Ness for the Timer Moses Award as MTACDL’s 2017 Lawyer of the Year.