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Thursday, September 09, 2010

THE PREVARICATING PROSECUTOR: WITHHELD EVIDENCE? WHAT WITHHELD EVIDENCE?

Records Records Where Are the Records ...

 

§  September 10, 2009, Assistant Burleigh County State’s Attorney Suhr to Hoffman

"I am in receipt of your August 28th letter to Cynthia regarding the November 8, 2007 memorandum from Jason Wahl regarding Dave Spencer. Neither Cynthia nor I recalled this specific memorandum so we had our support staff go back through the file to confirm we had it. Our staff has also reviewed the multiple discovery responses over the course of this case and the discovery checklists prepared in conjunction therewith. While meticulous effort was taken to ensure that every single page of discoverable materials was provided in discovery, the volume of documentation (thousands of pages) received and disclosed over the course of nearly two years made it impossible to individually catalog each and every document as received and disclosed. Accordingly, 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."

 

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

"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."

 

§  January 19, 2010, Cynthia Feland to Joe 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.

 

§  August 9, 2010, Cynthia Feland's MOTION IN LITIS CONTESTATIO AND BRIEF 

It is the state's position that there were no discovery violations in this case and no grounds exist for a new trial. However, since the defense has complained to the state that a discovery violation exists, and suggests that violation was the result of prosecutorial misconduct, it is in the best interest of both parties to have the Court rule on this matter.

 

After the defendant was convicted by the jury, his attorney complained to the state that he bad not been provided with all discovery in this case. Specifically, on August 28, 2009, Mike Hoffman sent a letter claiming that he had come into possession of a "Memorandum to you from Mr. Wahl" (Wahl memo).

 

The Wahl memo is merely a summary of a series of conversations, meetings and discussions between the State Auditor's Office (SAO), WSI's executive team members and staff of the Attorney General's office.

 

That paragraph states: ''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."

 

There is no exculpatory "evidence" in this paragraph. The defendant takes an opinion out of context, and attempts to couch the information as "evidence" by claiming that it could be used to make the "argument" that if an attorney advising the SAO did not find a problem with the Spencer information then the jury would have adopted the same view. In or out of context, that does not mean there is any "evidence" in this paragraph.

 

All this, however, is for naught as the state can unequivocally prove that this same information was disclosed and provided to the defense in another document the state sent to the defense.

 

Moreover, had defense counsel availed himself of the state's open file policy, he would have discovered the Wahl memo in that fashion.

 

The Wahl memo, which the defendant "claims" was not received in discovery, is a public record, readily obtainable through the SAO. In addition, the defendant could have obtained the Wahl memo by reviewing the state's attorney's open file under Rule 16. Perhaps most importantly, the Wahl memo is duplicative of the source materials that the state unequivocally can prove were provided to the

 

 

§  August 10, 2010, "Feland asks judge to decide whether she committed violation in Blunt case" by Jenny Michael, Bismarck Tribune 

 

Though she cannot prove the two-page memo was given to the defense, she said, it was in her office file on the case, which is open to defense attorneys. “They have all the information, and this is basically a motion asking the court to rule they were given all the information in the state’s file,” she said.

 

Assistant State’s Attorney Lloyd Suhr, who prosecuted the case with Feland, replied in a letter to Hoffman that it was not possible to say whether the memo had been provided to the defense, because it could have been included with other materials. He said any failure to disclose it was inadvertent ...

 

Feland’s motion said the information in the Wahl memo duplicated other information that she could prove “unequivocally” was turned over, including transcripts and audio recordings and other documents pertaining to the issue.

 

 

§  August 11, 2010, "Ex-ND workers' comp director wants to reopen case" by Dale Wetzel, AP

 

"Feland said Wahl's conclusion did not exonerate Blunt. She said she could not prove Hoffman was given the memo, but said all of the information it contained was turned over, including transcripts and audio recordings of interviews and copies of Wahl's working papers.

 

 

 

  • August 26, 2010, "Blunt asks for new trial because of unreleased documents" by Jenny Michael, Bismarck Tribune

 

According to a motion filed Thursday by Blunt’s attorney, Michael Hoffman, the defense never received reports concerning interviews that Bureau of Criminal Investigation Special Agent Mike Quinn conducted with WSI employees as part of the investigation into Blunt’s actions.

 

 

  • August 27, 2010, "Supreme Court Disciplinary Board gets petition to discipline Assistant Burleigh County State's Attorney Cynthia Feland" by Jenny Michael, Bismarck Tribune

 

Feland said Friday that she will file a response next week to Hoffman’s motion for a new trial. She has maintained the state’s attorney’s office turned over all evidence in the Blunt case and said she “welcomes the chance” to prove the office did everything right. We’re going to prove that we turned over everything in the Blunt case,” she said.

 

 

§  October 27, 2008, Bob Peterson to Legislative Audit and Fiscal Review Committee Members, Office of the Attorney General Legislative Council "RE: Request for Information"

 

We do not have a list of all Information requested by and provided 'to the Burleigh County State's Attorney's Office. Thus, we had to rely on our memory of what types of documents and information were requested. ... While Jason Wahl of our office received a subpoena to appear for a preliminary hearing, this document was not maintained and we have no other subpoenas, summons, or complaints issued to our office relating to WSI. ... Workforce Safety & Insurance also appears to have done the same as they identified in the follow-up performance audit report that they "spent numerous hours preparing and providing information" and have provided "voluminous documents" to BCI, HP, and the Burleigh County State's Attorney's Office.

 

 

§  September 2, 2010, "AFFIDAVIT OF KIM BLESS" 

 

  1. That in September of 2006, our office restructured my position from handling specific tasks like preparation of complaints or discovery responses to being assigned to individual attorneys and handling all of the discovery, file and document preparation, among other duties and responsibilities for their respective cases. I was assigned to State's Attorney Richard Riha and Assistant State's Attorney Cynthia Feland.
  2. That as part of my duties I prepared all discovery responses in the Blunt case. Shortly before the Blunt case, our office started using discovery checklists to document items being sent in response to discovery requests. The original checklist would be sent with discovery and a copy was to be retained for our records. Prior to using discovery checklists we would send discovery responses that did not specifically list the documents attached.
  3. That as a matter of office policy, all documents coming in to our office are to be date stamped by the receptionist They are then routed to the attorney assigned to that case. The attorneys then give us the documents to handle. I have been instructed to send out any and all information or documents we receive in a case to the defense attorney as part of our ongoing response to discovery requests. After discovery has been sent, the documents are then placed in the file. Discovery in the Blunt case was handled no differently than discovery in any other case.
  4. That we started the process of using discovery checklists to better track the documents that had been sent in discovery and have continued to make modifications to our discovery response procedure. I began using the checklist process in March of 2007. One of the other assistants that began employment in our office brought the idea and after discussion it was determined to be a better method for tracking information sent in discovery. The first discovery response in the Blunt case was prepared by me in early May of 2007. Given the unusual volume and types of documents we received, I tried several different ways to record the documents being sent in discovery on checklists. There are several categories of items listed on some of the discovery checklists that when I now review the file, I am unable to state with certainty what documents were reflected by my description. Further, in comparing our billing records to the discovery checklists in our Blunt file, I discovered that we had checklists where no billing had been sent and billings which I could not correspond to a discovery checklist. These are mistakes that I would have made in my haste to get discovery out. Ms. Feland has expressed to me the necessity of getting information out quickly. In recalling the details of discovery in this case, I am concerned in our haste to turn over documents not all of the items may have been recorded on checklists. That may have occurred on one or two occasions when Ms. Feland took copies of documents to hand deliver to Mr. Hoffman when they had a hearing in the Blunt case that day.

 

 

  • September 2, 2010, Cynthia Feland's REPLY TO DEFENSE'S RESPONSE TO STATE'S MOTION IN LITIS CONTESTATIO AND RESPONSE TO MOTION FOR NEW TRIAL

 

In contrast, the state will show through documents and affidavits that the Wahl memo, C99 working paper (with the handwritten notations), and four supplemental BCI reports were either unequivocally received by the defendant before trial or contain no relevant or prejudicial evidence which would warrant either dismissal or a new trail.

 

As stated above, the subject matter of the defendant's discovery complaint consists of three items ...

 

Subsequent open records requests establish that Cates was sharing documents he obtained from the SAO with Blunt, so even if the state inadvertently did not send Mr. Hoffman the Wahl memo (just for discussion purposes), there can be no reasonable doubt that the defendant had that document prior to trial via Cates.

 

... in one (BCI) report the defendant claims he didn't receive ...

 

 

Therefore, there is neither relevance nor prejudice to the defense of any information in the BCI report if the Court believes the defendant did not receive the report before trial.

 

 

Also attached to the defendant's response are letters between Mr. Hoffman and the state. In Mr. Hoffman's letter of November 24,2008 (B19, attached to defendant's response) he stated:

 

"Please provide to me as soon as possible all law enforcement interviews with potential witnesses what have not previously been provided. It appears to me that the last law enforcement interview with a witness provided to me was the Quinn interview of Pam Sharp on June 12, 2007."

 

 

 

What the state interpreted Mr. Hoffman's letter to mean when he said "all law enforcement interviews" were recordings or transcripts of interviews, not reports which the state believed had already been provided. Therefore, on November 26, 2008, the state responds to Mr. Hoffman's letter as follows (B20, attached to defendant's response):

 

JIM’S TRUCKS

 

 

"Enclosed are transcripts of the tapes that were previously provided to your office. In response to your letter of November 24, 2008, the only interviews that were taped are those of Angie Scherbenske and Jim Long which have already been provided to you."

 

Here, the state is responding to what we believe the defendant is seeking, i.e. source documents for the BCI reports.

 

The reason the state assumed the defendant had the BCI report is because we do not send out tapes until we get a blank tape from the defense as a matter of office policy.

 

In a signed letter on letterhead paper from Mr. Hoffman dated that same day, November 26, 2008 (B23, attached to defendant's response) and mailed to the state, which the state did receive on November 28, 2006 according to our date stamp, he states: ''Please provide to me as soon as possible all law enforcement written reports of interviews with potential witnesses what have not previously been provided. It appears to me that the last law enforcement interview with a witness provided to me was the Quinn interview of Pam Sharp on June 12, 2007."

 

After receiving the letterheaded and signed November 26, 2008 letter (B23, attached to defendant's response) from Mr. Hoffman nothing in the state's attorney's office's records indicates that any response was made to it. See, Attachment Q. Granted, the defendant is asking for BCl reports written after the Pam Sharp interview which the four supplemental BCl reports the defendant attaches to his response were. Clearly, the state should have responded to this letter and at least informed the defendant of the BCI reports that we believed we had provided, which would be in keeping with our November 26, 2008 letter where we referenced source documents that make up the report.

 

At first glance the defendant's November 24, 2008 (B19, attached to defendant's response) and November 26, 2008 (B23, attached to defendant’s response) letters look identical and the state was operating under the assumption that the defendant was asking for the information as reflected in his November 24', 2008 letter. We assumed the defendant had the four BCI supplemental reports as we had provided source documents and dubbed tapes for him.

 

This is where the state's open file policy is useful to both parties. Candidly, we don't expect defense attorneys to routinely come and look through the state's file. As a matter of course, we send the information in our file when we receive a discovery request, like we did in this case where we sent the defendant hundreds of copies of documents.

 

We assumed that Mr. Hoffman's second letter was requesting the same information we had already responded to and should have made a more careful reading of it.

 

Further, it is our intent to disclose all evidence, exculpatory or otherwise, for the defense to determine what if any significance to place on any particular document of piece of information.

 

 

 

The state could argue that we are only required to provide the final version. We don't because we believe we are required to turn over everything. Even though the "corrections" may not be "exculpatory" or even ''material'', the defense needs to decide how to use the information, not our office. No decision, conscious or otherwise, was made by the state to not disclose the information the defendant claims he did not receive.

 

The defendant only cites to Rule 3.8(d) in hopes that the Court will issue an opinion granting him a new trial even though he can't show any prejudice by any of his "claimed" non disclosures by the state. In other words, the defendant is asking the court to impose a new standard - that of strict liability - without considering that the information that was alleged not be disclosed was duplicative or irrelevant, and in no way prejudiced the defendant.

 

 

  • September 2, 2010, "Cynthia Feland says there should be no new trial for Sandy Blunt" by Jenny Michael, Bismarck Tribune

 

Feland, in her response filed Thursday, said the state’s attorney’s office believes it did provide all BCI reports to the defense based on defense requests for supplementary information from those reports.

 

 

  • September 03, 2010, "ND prosecutor: No key info withheld in Blunt case" by Dale Wetzel, AP 

 

Cynthia Feland, an assistant Burleigh County state's attorney, said in a court filing Thursday that her office may not have turned over a state auditor's memo to Blunt's attorney, Mike Hoffman, before Blunt's December 2008 trial.

 

Hoffman, in an earlier filing, said Feland did not disclose bureau reports of interviews with Wahl and four Workforce Safety and Insurance executives even though he had requested them. Feland agreed Thursday that the reports were not disclosed, because she said prosecutors mistakenly believed they had already been turned over.


 

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Comments

Avatar for Jacob

All that work for nothing.  I hope you aren’t a gambler.  You couldn’t pick a winner if your life depended on it.

Jacob on September 15, 2010 at 08:29 pm

I see you do not even have the courage to include your last name, Jason. Or is the first name a stage name as well?

You’re reacting like a true narcissist, attacking the messenger when the news is bad for your side.

Lynn Bergman on September 15, 2010 at 10:16 pm
Avatar for Jacob

I’ve had friends that had to call the cops to keep SCates at bay, so you want me to tell him who I am?  News flash, SCates is a bit obsessive.

Good thing no one reads this blog, otherwise your towering intellect would make me feel small.  “news is bad for your side”?  Sorry I can’t follow you on that one.

Jacob on September 16, 2010 at 12:30 am
Avatar for Lea Berger

Apparently people do read this blog, you’ve proven it by commenting. Way to go :)

Lea Berger on September 16, 2010 at 01:01 am

The “bad news” is the coming defeat of your candidate. But let’s lighten this up.

“Reason”, when combined with a spot of tea, can lead to “treason”... what the founders were accused of when they dumped the tea (which was taxed at 119%) into Boston Harbor.

Hopefully that will confuse you even more!

Lynn Bergman on September 17, 2010 at 03:26 pm
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