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Saturday, March 06, 2010

THE PREVARICATING PROSECUTOR VI:  MISLEADING THE MEDIA OVER WITHHOLDING EXCULPATORY EVIDENCE

State's Attorney
Richard Riha
Assistant State's Attorney
Cynthia Feland
Assistant State's Attorney
Lloyd Suhr

Burleigh County Assistant State’s Attorney Feland charged and convicted Charles (Sandy) Blunt of not collecting moving expenses from his “friend” Dave Spencer and stated that:

 

“As Spencer resigned less then 2 years after being hired, he was required by WSI policy and state law to reimburse WSI for one-half of those moving expenses. Again, contrary to WSI policy and state law, the defendant allowed Spencer to keep the entire moving reimbursement illegally and all of the evidence of this fraudulent action has been previously provided to the defendant.”

 

However, a series of notes in the North Dakota State Auditor’s Office (NDAGO) audit of Workforce Safety and Insurance (WSI) working papers show that this issue was fully reviewed by State Auditors with the North Dakota Attorney General’s Office (NDAGO) and that WSI (Blunt) acted appropriately (legally) in not collecting the money since Spencer’s resignation was not “voluntary”.

In fact, Auditor Jason Wahl of the NDASO authored a memo thirteen months before the criminal trial, dated November 8, 2007, which he sent to Feland, the primary prosecutor of Sandy Blunt, in which he stated:

 

“…Based on the information Mr. Blunt provided, he made it appear Mr. Spencer’s leaving was not completely voluntary - either Mr. Spencer had to choose to leave or Mr. Blunt would make that decision for him. Mr. Blunt specifically stated it was not a voluntary departure. Due to the new information provided by Mr. Blunt, we determined, in consultation with a representative of the Attorney General’s Office, there was not a voluntary resignation so it was determined to drop the recommendation we had drafted.

 

The matter of Mr. Spencer’s separation from WSI and the accused illegality on the part of Blunt which turned on the matter of the situation, be it “voluntary” or “involuntary” was the most significant issue of the trial. In fact, the only question asked by the jury of The Court was on that very issue of what constitutes voluntary versus involuntary separation.

The prosecutors knew well in advance of the trial that Auditor Wahl was required by law to report any illegal activity that he found in his official capacity during the audit of WSI. He found none. He told Feland so. Feland did not provide the memo to Sandy Blunt or his defense attorney Michael Hoffman.

Assistant State’s Attorney Cynthia Feland continues the pervasive pattern of perpetual prevarication when, in her official capacity, she corresponds with Joe Paduda in a series of emails. A Brady violation is huge prosecutorial misconduct. Paduda cannot get a straight answer for obvious reasons.

 

Definition: Brady Material - Information or evidence that is favorable to a criminal defendant’s case and that the prosecution has a duty to disclose. – The prosecution’s withholding of such information violates the defendant’s due process rights. Black’s Law Dictionary, 8th edition, 2004.

 

Nationally recognized insurance expert/author Joe Paduda weighs in on the prosecution of Sandy Blunt writing at Workcompcentral.com in his article “Who is the Crook?”:

 

Few things I’ve encountered in my 25-plus years in the insurance business are as outrageous as the prosecution of Sandy Blunt, the former head of the North Dakota work comp fund.

Turns out it was way more than ‘wildly excessive’; the Blunt conviction was the result of egregious prosecutorial misconduct.

 

The prosecutor didn’t give Blunt’s attorney exculpatory evidence that would have proven that the sick leave charge was insignificant and it wasn’t even a concern to state auditors who had gone through the state fund’s books with a fine-toothed comb. More importantly, the prosecutor didn’t give the memo from the state auditor pertaining to this issue to Blunt’s attorney.

I have no idea what in the hell is going on up in North Dakota, but I do know this. Sandy Blunt is a decent, honest, very capable guy who has been absolutely screwed, apparently in no small part by a prosecutor who broke the law.

 

The BusinessWeek biography of author Joseph Paduda indicates that he is a major health-care/insurance analyst, stating:

Based in Madison, Conn., Joseph Paduda is a national health-care expert who works with insurers, managed care organizations, and employers to reduce the costs of health care. Currently, principal of Health Strategy Associates, he previously held executive positions with major insurance companies, including United HealthCare and Travelers. Paduda also writes a health-care blog, ManagedCareMatters.com, and is a founder of HealthWonkReview.com, a biweekly collaborative blog on health-care policy.

Paduda’s article of January 12, 2010 “Fact Checking – North Dakota Style”, puts the spotlight on the Blunt affair with the brightest light focused on prosecutor Cynthia Feland, providing a succinct summary of the situation in saying:

 

Turns out that the prosecutor who brought the charges, Cynthia Feland, knew that failing to collect the moving expenses was not a crime - yet she brought charges anyway.

 

She had in writing that the ND Attorney General advised state auditors in October of 2006 that the exec did not voluntarily leave and thus there was no legal authority to collect. This fact was then put in writing to Feland a year before the trial and she

 

- added it as a crime just weeks before the trial and

 

- withheld the memo proving it was all legally done, thereby not giving the defense exculpatory evidence she was legally required to provide.”

 

That’s a big assumption, as her comments could have referred to any of the other posts I’ve written about the Blunt case, but as the possible withholding of exculpatory evidence is the most egregious of the prosecutor’s actions, I’ll focus on it.

 

Becoming more curious as time went by, Paduda initiated an email exchange to clarify his understanding. Assistant State’s Attorney Feland responded in a manner that did not clarify. Prevarication never clarifies.

 

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January 12, 2010, Joe PADUDA to Cynthia Feland, Subject: Blunt case and the Wahl memo

 

My name is Joseph Paduda and as you know I have been reviewing and commenting on my concerns regarding your prosecution of Sandy Blunt. ... I’d like to focus on Wahl’s November 2007 memo, which I have said was not provided to Blunt or his attorney prior to the opening of the trial. I have reviewed the Court Transcripts from every hearing and I can not find anywhere any introduction, mention, or discussion of this memo in any form. Instead, the only reference to the moving expenses and sick leave items that I can find in any original form come from Jim Long’s Whistleblower allegations presented to you in October of 2007 and Long’s attorney Tom Tuntland’s, press release regarding these allegations. Subsequent to that mention, there is documentation of Wahl advising you in November of 2007 (presumably at your request to do so in your preliminary investigation of the issues) that the issues were reviewed by the State Auditor and not carried any further after their review and discussion with the Attorney General’s Office where they point to no violation let alone any crime. I may have missed the mention of the Wahl memo or inclusion in evidence, and/or there may be documents that I have not seen. If you have any documents that show the newly added items were in fact part of the original audit and case or any other transcripts or documents that demonstrate that what I have written is in error, please present them to me at your earliest convenience so that I may write an apology and issue a retraction.

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January 13, 2010, FELAND to Paduda

 

Your email raised two issues. The first has been addressed with Mr. Blunt’s attorney, Mike Hoffman. As to the second, earlier in the case, Mr. Hoffman requested a Bill of Particulars to which the state responded and the court issued a ruling.

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ASSERTION 1 --... earlier in the case, Mr. Hoffman requested a Bill of Particulars to which the state responded and the court issued a ruling.”

Now to the case facts: on September 3, 2008, (103 days before the start of the trial or 83 percent --504 days-- into the case after Blunt was charged) Hoffman requested a Bill of Particulars. On September 23, 2008, (83 days before the start of the trial or 86.3 percent --524 days-- into the case after Blunt was charged) the state responds to Hoffman’s request by announcing they are adding three new crimes against Blunt --moving expanses, sick leave, and a grant.

Maybe it is just me, but no matter how magnanimously it is asserted, something that does not occur until more than 80 percent into the case does not fit into the category of “occurring near the beginning (an early or rudimentary phase) of a given course of events.” Thus, the assertion by Feland’s is nothing more than the textbook definition of assertion “Something declared or stated positively, often with no support or attempt at proof. “ (The American Heritage® Dictionary)

 

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January 13, 2010, PADUDA to Feland

 

From reading Mr. Hoffman’s specific questions and reviewing his line of questioning, it certainly does not appear as if he is aware of the Wahl memo’s existence.

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January 14, 2010, FELAND to Paduda

 

The Wahl memo you refer to had no relevance to any issues in the case because all the information in it was provided to the defense many times over. As in many criminal cases, multiple after the fact rationalizations are made up in an attempt to create an excuse for being convicted. That’s all the claims about the memo amount to in this matter. There were no violations of the discovery rules in this case, and if there were the judge would find so. As no such findings have been made, your concerns about the memo are unfounded.

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ASSERTION 2 -- “The Wahl memo you refer to had no relevance to any issues in the case because all the information in it was provided to the defense many times over.”

 

Wahl’s memo had no relevance to any issues in the case? Really?

 

1.     A punctilious memo ...

2.     published on official Office of the State Auditor letterhead ...

3.     by a state auditor (and not just any state auditor but THE state auditor who actively assisted the prosecutor in the prosecution of Blunt and THE STATE’S PRIMARY WITNESS at trial) ...

4.     to the prosecutor 320 days before the prosecutor adds new “crimes” against Blunt ...

5.     in which the auditor documents that the Attorney General’s Office (almost 700 days earlier) ...

6.     advised the auditor that Blunt (WSI) acted legally and appropriately ...

7.     and which could have been used to impeach the credibility of the state auditor who Hoffman stated “in my legal opinion (committed) perjury” during the trial ...

 

... and Feland and her co-counsel Lloyd Suhr claim that this memo had no relevance to any issues in the case? Really? Even though Wahl’s memo is the “one and only” document that exists “anywhere” which explicitly states that the attorney general determined WSI (Blunt) was correct in its action regarding Spencer they honestly believe it had no relevance to any issues in the case?

Feland backs up her assertion by stating that the “information in (the memo) was provided to the defense many times over.” Thinking I missed something, I went back to the records and transcripts but could not find even one instance where Blunt was advised verbally or in writing about the AG’s definitive determination, let alone many. Again, how can information that was contained in one --and only one-- single document have been “provided to the defense many times over” when Wahl’s memo was never given to Blunt once, let alone over-and-over again? What gave her the right to execute a dissected process for disclosing exculpatory evidence? What gave her the right to decide on behalf of Blunt what was and was not relevant to his defense? And what gave Feland the right to withhold a key document that could have been used by Hoffman while questioning its author on the witness stand (a document that would have impeached Wahl’s actual testimony and credibility as a witness)?

As can be seen in Andrew Smith’s 2008 “Brady Obligations, Criminal Sanctions, and Solutions in a New Era of Scrutiny” published in the VANDERBILT LAW REVIEW, it certainly WAS NOT Feland’s professional obligations/rules or US Supreme Court case law which granted her the right to do so:

 

In 1963, the Supreme Court ruled in the Brady case that the government has a duty to disclose material evidence to the defense, which could tend to change the outcome of a trial. This exculpatory evidence, often referred to as “Brady Material,” could tend to prove that the accused party is innocent or cast doubt of their guilt.

 

A “true” Brady violation demands that “[t]he evidence at issue be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”30 ... the Court suggested that evidence capable of “affecting the outcome” of the trial is material and must be disclosed.34 ... Since the standard is “inevitably imprecise,” and because it is difficult to analyze the importance of a single piece of evidence in isolation, ideally a prosecutor would tend to err on the side of disclosure.45

 

ASSERTION 3 -- “As in many criminal cases, multiple after the fact rationalizations are made up in an attempt to create an excuse for being convicted. That’s all the claims about the memo amount to in this matter.”

 

So ... even though Feland and Suhr never gave Blunt a copy of Wahl’s memo --clearly exculpatory evidence-- any legitimate and legal concerns raised regarding the withholding of the memo amounts to nothing more that an “after the fact rationalization made up in an attempt to create an excuse for being convicted?”

Regardless of Feland and Suhr’s attempted after the fact rationalizations to justify securing a conviction while willfully not adhering to their ethical and legal obligations to have provided the memo in-whole to Blunt prior to the trial (especially when reviewed in context to the information above), the memo was a critical piece of evidence in the case and would have had a substantial affect on the outcome of the trial. It is nearly impossible to comprehend how pointing out substantial prosecutorial misconduct is nothing more than an “after the fact rationalization made up in an attempt to create an excuse for being convicted.”

 

ASSERTION 4 -- “There were no violations of the discovery rules in this case, and if there were the judge would find so. As no such findings have been made, your concerns about the memo are unfounded.

 

It is impossible for a finding regarding a discovery violation to have been made when no allegation of such a violation has yet been presented to the Court for review. Feland’s statement is wildly deceptive as she knows that these allegations have NOT YET been presented to a Judge for a ruling. And the records of the case prove this fact.

In his September 23, 2009, communication with the prosecutor’s office, Hoffman documents that no such discovery challenge has yet been filed and why: “Although Mr. Blunt believes this prosecutorial misconduct should bar a retrial ... Mr. Blunt runs the risk procedurally of waiving his pending arguments on appeal, including his acquittal arguments, if he files now a motion for new trial or a petition for post-conviction relief in the trial court. The unfortunate circumstance of not filing a motion or petition with the trial court now is that the Supreme Court will be deciding a case without all the facts, as we are limited on appeal to what is actually in the record.”

What is unfounded is Feland’s assertion that there are no discovery violations simply because they have not been filed yet.

 

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January 14, 2010, PADUDA to Feland

 

Ms Feland - I re-read your response and my query below, and realize I may have been less than clear. Please allow me to clarify what I’m looking for. Where is there documentation that the November 2007 Wahl memo was introduced into evidence and/or provided to the defendant or defense counsel? I’m asking as I have carefully searched the transcripts and related documents and can find no reference to this memo.

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January 15, 2010, PADUDA to Feland

 

I have a clarifying question to ask to make sure I don’t misunderstand your note. In your response you are saying that the Wahl memo was a non-issue therefore you did not need to (and did not) provide it to Blunt? Correct?

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Jan 15, 2010, FELAND to Paduda

 

No information was withheld from the defense.

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ASSERTION 5 -- “No information was withheld from the defense.”

 

Back to the documents we go. On September 10, 2009, Lloyd Suhr (Feland’s co-counsel) stated to Hoffman:

 

“... we were unable to identify a specific discovery response pertaining to disclosure of this particular document.

 

Therefore, I can neither expressly confirm nor deny that the document was not disclosed. Any failure to disclose was inadvertent and unintentional and a byproduct of the sheer volume of documentation in this case.”

 

The bottom line is, if Wahl’s memo was not given to Blunt then it was withheld. And the records indicate Wahl’s memo was NOT given to Blunt. On August 28, 2009, Hoffman wrote to Feland “I did not have this memo at the time of the trial of this case, and you had not produced this memo in discovery or in response to my request for material under Brady v. Maryland.” On January 14, 2010, I wrote Hoffman and asked “Was the November 8, 2007 memorandum written by Jason Wahl, auditor of the North Dakota State Auditor’s Office addressed to Burleigh County Assistant State’s Attorney Cynthia Feland concerning the separation from North Dakota Workforce Safety and Insurance of Mr. David Spencer provided to Mr. Charles Blunt or yourself prior to the December 2008 trial of Mr. Blunt?” Hoffman responded “No.”

Contrary to Feland and Suhr’s prevarications to the contrary, critical information WAS WITHHELD from Blunt.

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January 19, 2010, FELAND to Paduda

 

All information in the Wahl memo has been disclosed to the defense. Given the extra large volume of discovery in the case, I have no way to provide to you the exact date of disclosure of the memo itself. The Wahl memo was also a public record at the auditor’s office. Therefore, as I stated, there is no issue with it and it is a waste of time.

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ASSERTION 6 -- “All information in the Wahl memo has been disclosed to the defense. Given the extra large volume of discovery in the case, I have no way to provide to you the exact date of disclosure of the memo itself. The Wahl memo was also a public record at the auditor’s office. Therefore, as I stated, there is no issue with it and it is a waste of time.”

 

Here, Feland is apparently not sure which story works best so she takes two paths: 1) we disclosed all the relevant information in the memo to the defense thereby making the memo itself irrelevant; and 2) there was so, so much discovery that we can not find the exact date we provided the memo but I assure you that we did provide the memo in whole to the defense.

Neither the law nor Feland’s and Suhr’s professional standards care about “why” the information was withheld just that it WAS withheld:

 

“The harm to a defendant in instances of nondisclosure is not alleviated merely because a prosecutor made a good-faith error in judgment or was simply negligent in meeting the Brady requirements.”

 

And even if Brady and all of its clarifying case law was not enough, Feland and Suhr were given numerous reminders/opportunities by Hoffman to turn everything over. On April 19, 2007, Hoffman filed a Request For Discovery and Request For Notice of Prosecution’s Intention To Use Evidence with Feland that stated (in part): “Pursuant to Rule 12(d)(2), NDRCrimP, Defendant, in order to afford an opportunity to raise objections to evidence prior to trial under Rule 12(b)(3), NDRCrimP, hereby requests notice of the prosecution’s intention to use in its evidence in chief at trial any evidence to which Defendant is entitled to discovery under Rule 16, NDRCrimP, subject to any relevant limitations prescribed in Rule 16. ... Continuing duty to disclose: If, before or during trial, the prosecution discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under Rule 16, the prosecution shall promptly notify Defendant or the Court of the existence of the additional material.”

 

On August 14, 2008, Hoffman AGAIN wrote to Feland stating:

 

“Enclosed please find an Amended Request for Discovery and Request for Notice of Prosecution’s Intention to Use Evidence. I have amended my request for discovery to conform to amendments to Rules 12 and 16 of the North Dakota Rules of Criminal Procedure. I have also added a request under Brady v. Maryland and its progeny. I do not expect you to re-do the discovery you have provided to date. I simply wanted to amend my request to conform to the amendments to the rules, and to include the Brady request.” And in the request he includes Section III. REQUEST FOR EXCULPATORY EVIDENCE: “The defendant requests the prosecution provide the defendant with any evidence which tends to exculpate the defendant. Defendant makes this request under Brady v. Maryland and its progeny.”

 

Most importantly, HOW is questioning a public official about her/his obvious violation of ethical and legal obligations a waste of time? HOW is looking into a coordinated and intentional denial of due process and civil rights by state prosecutors and state auditors a waste of time when: Feland HAD to turn the memo over to Blunt; Hoffman requested all discovery in writing twice; Hoffman explicitly requested all Brady material; the memo was clearly critical to the case; the memo called into question the credibility of witnesses; the memo proves that there was NO probable cause to have ever added crimes against Blunt; and, the memo proves that Feland lied numerous times to the Judge and Jury. The actual waste of time was knowingly prosecuting legal acts as crimes.

 

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January 19, 2010, PADUDA to Feland

 

Thanks for the response. Up to this point I’ve not been able to get a direct response to my question. Therefore I have no choice but to conclude that the defense was not provided with a copy of the Wahl memo during the discovery process or at any point prior to the trial. It was impossible for the defense to know whether or not ‘all information in the Wahl memo was disclosed to the defense’ as they were not afforded the opportunity to review the memo before trial. As the contents of that memo may have had a direct bearing on one or more of the most serious charges leveled at the defendant, it was incumbent on the State to ensure the defendant was fully aware of the existence and contents of that document. Finally I do not understand why you cannot just tell me that the Wahl memo was not given to the defense before the trial. I appreciate your assistance in helping me clarify these issues.

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On January 27, 2010 Joe Paduda wrote a column entitled “What if you were convicted of a crime that wasn’t?” In his column, Paduda notes:

 

I contacted (Cynthia) Feland several times over the last few weeks, asked her directly about this situation, and she refused to address the key question - had she provided Blunt with a copy of the State Auditor’s memo which cleared Blunt of any malfeasance related to Spencer? ... Specifically, was the Wahl memo of November 2007 provided to the defense? ”

 

Cynthia Feland NEVER answered the Paduda’s question! Because she broke the law?

What is not truly divined though from Paduda’s quick reference above, are the lengths to which Feland is willing to go to obfuscate and pervert the actual facts associated with her persecution of Blunt. What is also not divined in this piece, is how often Feland practices the legal axiom, “If the facts are on your side, argue the facts. If the law is on your side, argue the law. If neither is on your side, attack your opponent.”

Regardless of how hard Feland and Suhr attempt to justify/spin/obfuscate/ink-up their obligations, the indisputable reality remains that the US Supreme Court has abundantly and unambiguously ruled that the choice to disclose was not theirs to make and that they HAD to turn the memo (and likely much more) over to Blunt or risk facing serious legal and/or licenseture punishment.

 

 

Did Prosecutors Break Laws?

 

As stated by Maitri Klinkosum and Brad Bannon in their article entitled Brady v. Maryland and Its Legacy—Forging a Path for Disclosure:

 

Brady violations are, by definition, violations of an individual citizen’s 14th Amendment right to due process of law: the backbone of American criminal justice. Unfortunately, those violations have been so pervasive within the American criminal justice system that, as recently as February 2004, the United States Supreme Court once again found itself considering yet another case involving evidence withheld from the defense which would have impeached a prosecution witness. Addressing the Brady violation in that case, the Court eloquently summarized the issue in Banks v. Dretke:

 

A rule thus declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process. “Ordinarily we presume that public officials have properly discharged their official duties.” We have several times underscored the “special role played by the American prosecutor in the search for truth in criminal trials.” Courts, litigants, and juries properly anticipate that “obligations to refrain from improper methods to secure a conviction ... plainly resting upon the prosecuting attorney, will be faithfully observed.” Prosecutors’ dishonest conduct or unwarranted concealment should attract no judicial approbation.

 

Smith, in “Brady Obligations, Criminal Sanctions, and Solutions in a New Era of Scrutiny,” outlines that Brady violations ARE criminal acts and can be prosecuted as such:

 

18 U.S.C. section 242 (“section 242”) provides a means by which agents of the government can be held criminally responsible for their misdeeds under color of their official position. Section 242 provides that any person who, under color of law, subjects a citizen of the United States to the deprivation of any constitutional rights shall be subject to fine, imprisonment of not more than one year, or both.180 ... It is important to note that proving the prosecutor possessed the specific intent to violate a constitutional right is not essential to conviction; it is enough to prove that the prosecutor’s “aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.”189 Under section 242, an act is willful if it is carried out “voluntarily and intentionally and with specific intent to do something [the] law forbids; that is, with intent to violate a specific protected right.190 Section 242 is fundamentally “designed to prevent violations of all fourteenth amendment rights,” but it must actually be implemented against misbehaving prosecutors to secure any preventative benefit.191

 

 

 

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Comments

ANOTHER excellent article by Mr Cates.  How much longer before Bismarck Tribune will do a story (I am not holding my breath.  I am boycotting them until they have the integrity to do a story on this unethical and dishonorable behavior.

Madknuk on March 9, 2010 at 11:06 am
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