|Assistant State's Attorney
|Assistant State's Attorney
After being apprised that they did not provide a memorandum from the primary prosecution witness that destroys the vast majority of the prosecution’s case, Burleigh County Assistant State’s Attorney Lloyd Suhr, responds that it was an oversight. Then, he claims that the very succinct document in question is no big deal, that their was plenty of other evidence “of fact and description of events” somewhere in all the other documents turned over to the defense.
Defense attorney Michael Hoffman destroys this nonsense in his letter that also points out that there is very much other evidence that was not provided as law requires. He then explains how Auditor Wahl had likely, in his opinion, committed perjury! Suhr then asserts that witness testimony was not only equivalent in signifigance but likely more important then the MEMO!
April 19, 2007, Hoffman Requests ALL Discovery
Sandy Blunt’s Attorney Michael Hoffman wrote to Assistant Burleigh County State’s Attorney Cynthia Feland citing legal requirements when making a REQUEST FOR DISCOVERY AND REQUEST FOR NOTICE OF PROSECUTION’S INTENTION TO USE EVIDENCE.
FIRST PARAGRAPH-- 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.
LAST PARAGRAPH -- 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.
August 28, 2009, Hoffman Writes To Feland
I have come into possession of a copy of the enclosed Memorandum to you from Mr. Wahl dated November 8, 2007. 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.
Before I file what I determine to be the appropriate motion or petition, I wanted to give the State of North Dakota the opportunity to explain why I did not have this document before trial and perhaps to give the State of North Dakota the opportunity to rectify this situation by filing an appropriate motion or petition. Thank you.
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. We do have a copy of the memorandum in our file, with one notable exception. The copy we have is printed on letterhead from the Office of the State Auditor and the copy you provided with your letter does not. I am uncertain why that is.
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.
That being said, I have carefully reviewed the contents of Mr. Wahl’s memorandum and it appears to me, without question, that the substantive contents of each assertion of fact and description of events set out therein was fully disclosed to you through other materials provided during the lengthy and voluminous discovery process. Your thorough exploration of these asserted facts and events at trial evidenced your pre-trial knowledge of the same, as you would not have otherwise been able to delve into the issues as you did during trial.
To that end, I would ask you to please clarify the specific assertions of fact and descriptions of events set out in Mr. Wahl’s memorandum which you believe you were not privy to prior to trial as a result of not having Mr. Wahl’s memorandum, and how it prejudiced the defense of the case.
September 23, 2009, Hoffman to Suhr
This letter is in response to your letter to me dated September 10, 2009, and specifically in response to the last paragraph of that particular letter.
The most important language of the Memorandum to Ms. Feland from Mr. Wahl dated November 8, 2007, which we were not privy to until recently and well after the trial, is contained in the last paragraph of that memorandum, “we determined, in consultation with a representative of the Attorney General’s Office, there was not a voluntary resignation”. In the context of the specific allegation of failure to recoup moving expenses of Mr. Spencer, this quoted language is virtually controlling in Mr. Blunt’s favor. In the context of the entire case, its importance would have permeated virtually every aspect of the case, procedurally and substantively.
It is difficult for me to fathom the prosecutors in this case not knowing or not remembering the above quoted language of the memorandum when the decision was made in September, 2008, to add the allegation of failing to recoup the Spencer moving expenses to Count I in this case. How could the State believe that was a legitimate action in the face of the subject language in the memorandum? Rule 3.8(a), North Dakota Rules of Professional Conduct, provides, “The prosecutor in a criminal case shall ... refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”. The subject language of the memorandum, in my opinion, rises to the level of no probable cause for the allegation of failing to recoup the Spencer moving expenses.
Rule 3.8(a) is tied to the prosecutor’s duty to do justice, rather than just seek a conviction. See Comment [I] to Rule 3.8. Quite frankly, it appeared to me that the State scrambled in September, 2008, to add the new allegations related to Mr. Spencer and the grant money in an effort to shore up what was perceived to be a questionable case. My belief in this regard is bolstered, in part, by your opening statement to the jury wherein you start with Count II, the bonuses, the class C felony (rr. 34), and then go to Count I, the class B felony, starting with the Spencer sick leave and moving expenses (Tr. 37), including a discussion of the issue of voluntary leave (Tr. 40), and then the grant money (Tr. 41), before you go to what started this case, the gift certificates (Tr. 43) and meeting expenses (Tr. 44). Following the jury trial, the Bismarck Tribune quoted Ms. Feland in characterizing Count II “as the more clear” of the two counts. Saturday, December 20, 2008, Page IIA. The Forum quoted you as stating Count II “was the more clear-cut charge.” Saturday, December 20, 2008, A4.
Of course, we never had a preliminary (probable cause) hearing on the Spencer moving expenses. If a magistrate would have seen the subject language from the Memorandum at a preliminary hearing, the Spencer moving expenses would have never survived the preliminary hearing. This relates specifically to Mr. Blunt’s Issue for Review No. 2 presently before the North Dakota Supreme Court, “Did the trial court err in allowing the State to constructively amend Count I to include the allegations of Spencer sick leave and relocation expenses without a new preliminary hearing?”
When that Issue for Review No. 2 was argued in the trial court, Ms. Feland stated to the trial court, in part, regarding the Spencer moving expenses, “As soon as the Supreme Court came back indicating, yes, there was sufficient evidence for probable cause, then as I indicated, we went through the file and anything that we had had in there that had not been sent, we made sure that was sent out.” (Tr. of Pretrial Conference Hearing, November 3, 2008, pp. 18-19). Obviously, that statement is incorrect. What is even more troubling now, in light of the subject language in the Memorandum, is this statement by Ms. Feland to the trial court: “a preliminary hearing is for purposes of determining probable cause, and the State is only required to bring forth sufficient evidence to establish probable cause, not all of the evidence.” (Tr. of Pretrial Conference Hearing, November 3, 2008, p. 6, lines 18-22).
Rule 16(t)(I)(B), North Dakota Rules of Criminal Procedure, provides, “Upon a defendant’s written request, the prosecution must furnish the defendant ... any statements made by the listed prosecution witnesses”. Mr. Wahl was a listed prosecution witness, Mr. Blunt made this written request, and the subject Memorandum constitutes a statement made by Mr. Wahl. There exists here a clear violation of Rule 16.
Recently, I had a DUI trial with another prosecutor in your office. Upon cross examination of the arresting officer, we learned there existed a video of the stop which had not been provided to us. Judge Hagerty, citing Rule 16 and City of Grand Forks v. Ramstad, 2003 ND 41, 658 N. W.2d 731, dismissed the case, in part, because the defendant’s right to incorporate anything from the video into his opening statement, and to otherwise prepare for trial, had been compromised.
I have already mentioned defense use of the Wahl Memorandum at a preliminary hearing, or, as it turns out in this case, at the argument to Judge Romanick on November 3, 2008, as to why Mr. Blunt should be entitled to a preliminary hearing on the Spencer moving expenses. Just as Judge Hagerty acknowledged in that DUI case, Mr. Blunt could have used the Memorandum in his trial preparation and in his opening statement.
Going further, however, Mr. Blunt could have quite clearly used the Memorandum in his questioning of Mr. Wahl. Please see the attached trial transcript, pp. 845-846, and please imagine how that questioning would have been different if we would have had the subject Memorandum. Instead of me asking Mr. Wahl “if” Mr. Spencer had left involuntary (Tr. 845, line 5), I could have established that Mr. Wahl in fact had concluded it was involuntary (Memorandum). Instead of Mr. Wahl speaking in general terms that “we would present the information that we had available to us at the time and contact our legal counsel, which is the Office of the Attorney General” (Tr. 845, lines 10-12), I could have established that Mr. Wahl in fact did consult the Attorney General before concluding it was involuntary (Memorandum). Indeed, Mr. Wahl sitting there at that time on the witness stand and not responding that he had in fact consulted the Attorney General, had in fact concluded the Spencer leaving was involuntary, and that he wrote a Memorandum as such to the prosecutor in this case, is, in my legal opinion, perjury. I believe the definition of “statement” in NDCC 12.1-11-04(4) covers his testimony above and the “representation” he made at trial.
In my closing statement to the jury, I argued, “Mr. Wahl said, if Mr. Spencer’s leaving was not voluntary, the issue’s moot which means, it’s not an issue. If you find, ladies and gentlemen, that Mr. Spencer’s leaving was not voluntary, then under Mr. Wahl’s own testimony, there is no issue here regarding relocation expenses.” (Tr. 1007, lines 12-18). You can easily imagine how that argument would have been different if the defense would have had the Memorandum (and if the trial court would not have thrown out the moving expenses on a motion for judgment of acquittal). Also attached is the trial transcript, pp. 1035-1036, where the jury, during deliberations, asked about involuntary versus voluntary. One would have to be completely disingenuous to say the Wahl Memorandum would not have had a bearing on the jury.
The Wahl Memorandum also directly relates to Mr. Blunt’s Issue for Review No. 6 before the North Dakota Supreme Court, “Was the State’s allegation that Blunt ‘failed to collect relocation (moving) expenses from Dave Spencer’ not proven as a matter of law?” Consistent with Mr. Wahl’s testimony at trial, Mr. Blunt’s argument on appeal was and is limited, “The State Auditor’s position was that, if Spencer’s leaving WSI was involuntary, then recoupment of meeting expenses was a moot point”. Brief of Appellant, p. 26. Clearly, that is not the whole truth of the matter.
Going back to Rule 3.8 of the North Dakota Rules of Professional Conduct, Rule 3.8(d) provides in relevant part, “The prosecutor in a criminal case shall ... [d]isclose to the defense at the earliest practical time all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense”. Here, this was not done. Mr. Blunt contends that what was done here constitutes prosecutorial misconduct which “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See State v. Kruckenberg, 2008 ND 212, 20, 758 N.W.2d 427.
Although Mr. Blunt believes this prosecutorial misconduct should bar a retrial, see State v. Jacobson, 545 N.W.2d 152, 159 (N.D. 1996), Levine, Surrogate Judge, dissenting and citing Pool v. Superior Court, 677 P.2d 261 (Ariz. 1984) and Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992), 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.
The State, however, at this time could remedy the situation by bringing the Wahl Memorandum to light and filing a motion to dismiss Count I with prejudice. This, I believe, under all the circumstances, factually and legally, is what the State should do. I believe the Wahl Memorandum to Ms. Feland in November, 2007, justifies this.
In closing, I need to add that there appears to be other statements which would need to be investigated. Mr. Wahl’s very last words in the Memorandum regarding moving expenses are, “so it was determined to drop the recommendation we had drafted.” However, at the pretrial conference on November 3, 2008, Ms. Feland states, “I can tell the Court that the information pertaining to this was part of the original audit that was conducted. The information pertaining to sick leave, the information pertaining to the relocation expense, the information pertaining to grant funds, that was all part of the original.” (Tr. of Pretrial Conference Hearing, November 3, 2008, p. 11, lines 17-22). The statements by Mr. Wahl and Ms. Feland are inconsistent, which in and of itself is problematic. Further, no audit pertaining to sick leave, moving expenses, or grant money was ever provided by the State to the defense in discovery. Therefore, the question arises whether there were statements by the auditor regarding sick leave (and grant money) which were also not provided in discovery, and perhaps also beneficial to the defense. Was the issue of sick leave also “dropped” by the auditor? If so, was that also done upon the legal advice of the Attorney General?
Finally, I am wondering if there are other witness statements which have not been provided. From the trial, we have reason to believe there were law enforcement interviews of at least Mr. Wahl, Mr. Long, Ms. Peltz and possibly Ms. Bjornson which were not provided in discovery. This would have to be investigated. Again, I suggest to the State a dismissal of Count I with prejudice. Thank you.
September 30, 2009, Suhr to Hoffman
I am in receipt of your September 23rd letter further discussing the November 8, 2007 memorandum from Jason Wahl regarding Dave Spencer. Much of your letter focuses on how you would have altered your questioning of Mr. Wahl at trial and the arguments you believe you would have made differently. Your letter further speculates on the impact of such questioning and arguments as it related to the ultimate verdict of guilty. Your citations to the trial transcript ignore Mr. Spencer’s own testimony under your cross examination that his departure was involuntary. See transcript, p.459-460. It is unclear how, when Mr. Spencer himself testified that his departure from WSI was involuntary, your ability to argue the same was hampered or prejudiced as you have suggested.
To the extent your letter discusses issues raised on appeal, I do not believe it appropriate to further discuss those matters given the pendency thereof.