STEVE CATES: BLUNT DISCOVERY PREFERENTIALLY PROVIDED AND WITHHELD
A major aspect of the prosecution of Charles “Sandy” Blunt was related to Mr. David Spencer, a senior staff subordinate of Blunt’s, departure from North Dakota Workforce Safety and Insurance (WSI). The Burleigh County State’s Attorney’s Office (BCSAO) PREFERENTIALLY PROVIDED to and PREFERENTIALLY WITHHELD from Blunt materials from four criminal investigation reports authored by Special Agent (SA) Michael Quinn of the North Dakota Bureau of Criminal Investigation (BCI) during the fall of 2007.
These “Quinn Reports” consisted of a written narrative of investigation activities and hundreds of pages of inclusions/attachments. None of the Quinn Reports after June 19, 2007 with the investigation narratives were provided Blunt. BCSAO DID provide Blunt 186 pages of documents that the SA Quinn obtained from North Dakota Workforce Safety and Insurance (WSI) and the North Dakota Office of Management and Budget (OMB). Quinn described those documents as having been in the “Manila envelop.” BCSAO DID NOT provide 142 pages and a 1.25 hour long audio recording of a primary prosecution witness. Those materials included items listed in the reports as “ATTACHMENTS” as well as those not individually listed that came from as SA Quinn stated, “Manila envelope containing copies of documents provided by WSI under an Open Records request”.
Other than the 20 pages of the diary of a WSI senior staff member Mark Armstrong and 10 pages of OMB Spencer pay records, ALL of the evidence that the prosecutors provided Blunt from the fall 2007 Quinn Reports were from the “Manila Envelope.”
The vast majority of the provided “Manila Envelope” documents (181 of 186 pages) concerned Spencer and are available to anyone from WSI under North Dakota open records laws. The five pages (5 of 186 pages) of non-Spencer matter pages are email communications between WSI and the North Dakota State Auditor’s Office concerning pay grade evaluation of WSI employees.
The “Manila Envelope” documents were mostly basic personnel file related materials concerning the hiring process, internal agency policy awareness, employee performance evaluation, career development, expense submittal and reimbursement records, emails between WSI employees regarding Spencer leaving the agency, and OMB pay records, etc.
Fall 2007 Quinn investigation discovery materials were provided on only two dates:
In filing to the North Dakota Supreme Court and in testimony during her June 2011 attorney ethics hearing, Ms. Feland has repeatedly asserted that “ALL” evidence in possession of the Burleigh County State’s Attorney’s Office (BCSAO) was provided to Blunt. Feland has made claims that she kept “a stack” (as in a single stack) of evidence from SA Quinn which resided on a credenza behind her desk while waiting for confirmation that Blunt would be tried. She claims that when it was official that the trial would take place that she put “ALL” of the Quinn discovery Credenza Stack in “Kim’s box” (reference to her legal assistant Kim Bless) so that the assistant could process the discovery and send it “ALL” to Blunt’s attorney, Mr. Michael Hoffman.
This appears to be incorrect. It would seem that SOME of the Quinn documents, all supposedly from the same single “Credenza Stack”, given to Bless, were rigorously itemized on discovery check lists and provided to defendant Blunt. But for some reason the four Quinn reports themselves were never provided to defendant Blunt except Quinn Report “ATTACHMENT”s listed as gift certificate logs from 2002, 2003, 2004, 2005, and the Mark Armstrong diary.
Attorney Hoffman testified under oath in Ms. Feland’s attorney ethics hearing and specified which Quinn Report documents attachments were not provided as discovery by BCSAO to defendant Blunt (Feland Ethics Hearing Transcript of June 29, 2011, beginning on page 81). Oddly, those documents claimed by Hoffman to have not been provided were the EXACT SAME as those that neither BCSAO’s Bless nor Feland could provide a discovery checklist nor a photocopying bill for, even though the documents that Hoffman testified that he had not received came from the “Credenza Stack” that Feland claims to have put into “Kim’s box” and which Bless corroborated such under sworn testimony during the ethics hearing
BCI Quinn Report – 06/19/2007 thru 10/10/2007
From the first of the four not provided to defendant 2007 2007 BCI Quinn Reports:
The discovery provided by BCSAO to Blunt from first 2007 Quinn Report “Manila Envelope” was:
On August 25, 2008, Bless of the BCSAO transmits to Hoffman a Discovery Checklist Supplemental that consisted of 108 pages of document copies all of which were from the BCI Quinn Reports "Manila Envelope." From that BCSAO checklist:
20 _Hand written notes - 4/18/07 - 5/08/07
14_Various emails (Tim Wahlin, etc.)
1 _ Attendance Policy
15 _ Spencer paycheck information
24 _ Hiring Selection Paperwork
10 _ Personnel Action Form & Related Documents
12 _ Performance Information
8 _ Acknowledgments
2 _ Miscellaneous (Awards, Training, etc.)
2 _ Career Development Information
On September 19, 2008, Bless of the BCSAO transmits to Hoffman a Discovery Checklist Supplemental that consisted of 78 pages of document copies all of which were from the BCI Quinn Reports "Manila Envelope." From that BCSAO checklist:
4 _ December 27, 2004 (Ck #50047240)
10 _ March 22,2005 (Ck #50154876)
12 _ April 12, 2005 (Ref #001 01858)
4 _ April20, 2005 (Ref #00107990)
2 _ May 17, 2005 (Ref #00115922)
6 _ June 7, 2005 (Ref#00119567)
4 _ June 22, 2005 (Ref #00122247)
5 _ October 4, 2005 (Ref #00135590)
5 _ October 11,2005 (Ref #00137310)
4 _ December 6,2005 (Ref #00144199)
9 _ December 20,2005 (Ref #00146578)
6 _ April 26, 2006 (Ref #00240907)
3 _ June 27, 2006 (Ref #00254698)
4 _ September 7, 2006 (Ref #00265731)
BCI Quinn Report – 10/11/2007 thru 10/24/2007
From the second of the four BCI Quinn Reports
not provided to defendant Blunt (emphasis added in red is material Hoffman testified to as not having received from BCSA):
There is no BCSAO Discovery Checklist documenting that the above listed items shown in red were provided to defendant Blunt by BCSAO.
BCI Quinn Report – 10/25/2007 thru 11/16/2007
From the third of the four not provided to defendant Blunt, 2007 BCI Quinn Reports (emphasis added in red is material Hoffman testified to as not having received from BCSA):
There is no BCSAO Discovery Checklist documenting that the above listed items shown in red were provided to defendant Blunt by BCSAO.
BCI Quinn Report – 11/17/2007 thru 12/12/2007
1. No items of evidence were seized as a result of this report.
Cynthia Feland has repeatedly claimed that if discovery was not provided to defendant Blunt it was by accident. An oversight. Too much paper. Neglected to create a discovery checklist……..
This is all very curious as on November 3, 2008, at Blunt’s Pretrial Hearing, Hoffman makes it clear that the defense has little no law enforcement investigation reports or interviews of listed witness in the matter of David Spencer but Feland tells The Court that all of “our ducks” have been placed in rows (red bolding emphasis added):
Page 14
15 MR. HOFFMAN: It's brand new. It's not a
16 matter of him just being a witness or not, it's the
17 theory of the prosecution that's changing.
18 You know, when we got the original discovery
19 in this case, I would have to say that the State in
20 terms of either BCI, law enforcement doing an
21 investigation before they brought charges, was next to
22 nothing. It was based upon them meeting with state
23 auditors and state auditors saying these things are
24 questionable, and then charging. I think the
25 discovery, those they talked to -- well, Angie
Page 15
1 Scherbenske was one, Tammy Dolan was another at the
2 time of bringing the charges. These are witnesses that
3 are named on the Information. But most of the names on
4 the Information, in terms of discovery of law
5 enforcement going and talking to witnesses and making a
6 report, it doesn't exist. These are all names of
7 people. Yeah, we're familiar with them because they're
8 involved with WSI. We have knowledge of who they are
9 and what potentially they might say. But in terms of
10 the State doing an investigation where they go out and
11 talk to the people and here is the report of what this
12 person says, it doesn't exist except for Angie
13 Scherbenske, Tammy Dolan, and maybe another one. The
14 other isn't corning to my mind right now. But all of
15 this Dave Spencer is brand new. It changes the theory
16 of the prosecution.
In response to Hoffman’s statements, The State (through Feland) assures/guarantees Judge Romanick that they “made sure” that anything at all in The State’s discovery relating to the additional criminal offenses was “sent out” to Blunt:
Pages 17 and 18
16 As I stated to the Court, the interview that
17 was conducted of Mr. Spencer took place back in '07.
18 No, I'll be candid with the Court, it wasn't my intent
19 to necessarily not provide it, but while we were
20 waiting for the Supreme Court, there wasn't really any
21 ongoing discovery that went out at that point. We
22 didn't know where the case was going to be. As soon as
23 the Supreme Court came back indicating, yes, there was
24 sufficient evidence for probable cause, then as I
25 indicated, we went through the file and anything that
1 we had had in there that had not been sent, we made
2 sure that was sent out. At that same time we started
3 going through things in preparation for trial to make
4 sure that, you know, we had all of our ducks in a row,
5 if you will. If all of the witnesses were properly
6 listed, if all of the exhibits and things that we were
7 looking at had been provided to Mr. Hoffman. And we
8 have been continuing to provide that information.
It is critical to understand from the pre-trial hearing that it was made plain by Hoffman to The Court and Feland that he had not received any discovery in the form of interviews or reports by law enforcement regarding David Spencer or anyone/anything else between June of 2007 and the time of the hearing. To which Feland responds making the inference by omission that Spencer had been the ONLY person interviewed. From the BCI Quinn reports we know that many other witnesses were interviewed regarding Spencer. Feland somehow neglects to mention that Wahl, Wahlin, Bjornson, Peltz, and Long had also been documented to have spoken to Quinn and exchange records with Quinn as well.
Also, Feland claims that as soon as she knew that the trial was going to happen according to the Supreme Court, that she had everything pertaining to Blunt reviewed and whatever had not been sent was sent to the Defendant. Since she has been unable to provide any Discovery Checklists or billings sent to the defense for photocopying for the discovery supplements records, what exactly did BCSAO “review” to make sure all of “our ducks” were lined up?
How is it that only some of the “credenza stack” is listed and verified to have been provided the defendant?
Why can BCSAO not find the other documentation for the other portion of the “credenza stack?”
Where two stacks made?
Was only one stack turned over to the defendant?
Why can BCSAO not find the checklists or billing records for only those materials that Hoffman testifies he did not receive?
If you understand what is the material difference between what BCSAO provided and what they did not provide defendant Blunt, the question of why exculpatory evidence was withheld becomes readily apparent.
Perhaps most compelling are statements on the issue of what was withheld were those made by the North Dakota State Supreme Court Disciplinary Board Panel regarding in the matter of attorney Cynthia Feland. After review of hundreds of pages of documents, and after two days of witness testimony during the hearing that took place on June 29 and 30, 2011, the Panel states in their November 2011 Findings of Fact, Conclusions of Law and Recommendation For Suspension that:
“When the Supreme Court returned the case to district court, Feland provided Attorney Hoffman with some documents that had been received during the appeal period, but there is no evidence that the full investigative reports and Wahl memo accumulated by Feland during the appeal were provided to Attorney Hoffman”. Page 4
“The investigative reports that were not provided to Hoffman included reports from BCI Agent Quinn that were obtained by the State during the time when the criminal case was on appeal from the trial court's dismissal. Included in those documents was a report that Agent Quinn spoke with Auditor Wahl, and Wahl basically repeated the same language that is in the Wahl memo to Feland of November 8, 2007”. Page 5
“The Panel concludes Cynthia M. Feland did not disclose to Michael Hoffman, defense attorney for Charles Blunt, the Wahl memo, and other documents which were evidence or information known to the prosecutor that tended to negate the guilt of the accused or mitigate the offense”. Page 9
From the June 30, 2011 Feland Ethics Hearing Transcript (page 369):
"MR. ULMER to MS. FELAND: I guess where I get confused in this particular -- not confused -- where I struggle is I think of a prosecutor's obligation to prosecute, but more importantly, I think of the prosecutor's obligation to also do justice. … but I still am struggling internally with where is the sense of justice here? This is one of the issues or why most folks walk around and go -- they demean the process. … So we're coming in with some sort of entrapment process rather than a straightforward where are we, and I think that's frankly what's wrong with the judicial system at this juncture."
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