Bernard J. Fitzpatrick v. Jack McCormick Warden of the Montana State Prison

Bernard J. Fitzpatrick appeals the district court’s denial of his petition for habe-as corpus relief. Fitzpatrick was convicted by a Montana state court and sentenced to death for deliberate homicide, to death for aggravated kidnapping, and to 100 years for robbery. He raises numerous grounds on which he argues the district court should be reversed. We reverse the dis trict court without making a determination of all issues raised.

PRIOR PROCEEDINGS

In October 1975, the petitioner, Bernard J. Fitzpatrick, and three codefendants were tried together on charges stemming from the kidnapping, robbery, and murder of a grocery store employee. Fitzpatrick and one codefendant, Gary Radi, were convicted of deliberate homicide, aggravated kidnapping, and robbery. They were each sentenced to 100 years imprisonment for the deliberate homicide, 100 years imprisonment for the robbery, and death by hanging for the aggravated kidnapping. Code-fendants Paul Bad Horse and Travis Holli-day were convicted of robbery and each sentenced to forty years in prison. A fifth codefendant, Edwin Bushman, was granted immunity and testified for the state.

On October 19, 1977, the Montana Supreme Court held…