Friday, October 11, 2013

Disorderly Conduct, Emails and Exculpatory Evidence

After a jury convicted Jeffrey Lynn Nielsen of disorderly conduct in violation of Minnesota Statutes § 609.72(1)(3) and he “was sentenced to a $1,000 fine and 90 days in jail, with $700 and 89 days suspended for one year.”  Nielsen v. State, 2013 WL 3968788 (Minnesota Court of Appeals 2013). “In lieu” of the day in jail, Nielsen “was authorized to perform eight hours of community service.” Nielsen v. State, supra. 

The opinion also notes that he was originally charged with disorderly conduct plus “theft in violation of Minnesota Statutes § 609.52(2)(1) and two traffic offenses” but the traffic charges were dropped “prior to trial, and the district court [judge] granted Nielsen’s motion to dismiss the theft charge for lack of probable cause.”  Nielsen v. State, supra.

The charges arose from this incident:

On October 4, 2010, K.M. contacted the Washington County Sheriff's Office and reported observing a vehicle with campaign signs for Stephen Bohnen tied to its top. K.M. followed the vehicle because he believed that a supporter of Bohnen's opponent had stolen the signs.

Both vehicles pulled to the side of the road, and K.M. stated that a man, later identified as appellant Jeffrey Lynn Nielsen, got out of his vehicle and approached K.M.'s vehicle. K.M. reported that Nielsen's demeanor was aggressive and threatening and that Nielsen asked `what the f--k he wanted.’ K.M. said that he was lost, and the encounter ended.

Nielsen v. State, supra.

After he was charged with the offenses noted above, Nielsen “filed a civil complaint against K.M., Bohnen, and Washington County, alleging fraud, conspiracy, and malicious prosecution.”  Nielsen v. State, supra.  According to the opinion,

[i]n the course of discovery in the civil lawsuit, Nielsen obtained a copy of the prosecutor's file from the criminal case. The file contained three e-mails sent from K.M. to the prosecutor in the two weeks before trial. The prosecutor reviewed these e-mails, but did not disclose them to Nielsen.

In a March 17 e-mail, K.M., a certified investment-management analyst, repeated the details of the October 4, 2010 incident, discussed the civil suit and his resulting `extreme stress’ and `financial hardship,’ and stated that his `license is at stake if [he's] found guilty of fraud.’

A March 18 e-mail contained an attachment with a `summary of the facts and [K.M.'s] state of mind’ and a letter from Nielsen's attorney in the civil case. The e-mail concluded, `As I understand it, if he's convicted on [disorderly conduct], his suits against me are dismissed. Therefore, I urge you to do what you can to get a conviction even though I know in the grand scheme of things how trivial this charge might seem.’

In one of the attachments, K.M. stated that `[t]here are deeper implications here, my industry is highly regulated and if I am somehow found guilty of Malicious Prosecution or Fraud my license could be in jeopardy.’ A March 22 e-mail contained a copy of the text of the attachments to the March 18 e-mail.

Nielsen v. State, supra. 

After he obtained these emails, Nielsen “petitioned for postconviction relief, arguing that he is entitled to a new trial because . . . he was denied due process of law and a fair trial when the prosecution failed to disclose the e-mails”. Nielsen v. State, supra.  In making this argument, he relied on the U.S. Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963).  As Wikipedia explains, the Brady Court held that

withholding exculpatory evidence violates due process `where the evidence is material either to guilt or to punishment’ . . .  

Exculpatory evidence is `material’ if `there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.’ Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution's witnesses, and evidence that could allow the defense to impeach the credibility of a prosecution witness.

Due process in a state criminal prosecution like this one is based on the provisions of the 14th Amendment to the U.S. Constitution, as Wikipedia also explains.

The district court judge who had this case denied Nielsen’s petition and motion for a new trial because she found (i) that “the e-mails should have been disclosed under Brady v. Maryland” but also found (ii) that Nielsen “is not entitled to a new trial because `there is not a reasonable probability that the result of the jury trial would have been different if the evidence had been disclosed to the defense.’” Nielsen v. State, supra.  He appealed, which led to this opinion. Nielsen v. State, supra. 

The Court of Appeals began its analysis of the issue by noting that suppressing

evidence that is favorable to a criminal defendant violates due process when the evidence is material to guilt or punishment. Brady v. Maryland, supra; see also Minnesota Rules of Criminal Procedure Rule 9.01 (requiring disclosure of material exculpatory evidence). A Brady violation exists if (1) the evidence is favorable to the accused, being either exculpatory or impeaching; (2) the state suppressed the evidence, either intentionally or unintentionally; and (3) the defendant was prejudiced by the suppression. Pederson v. State, 692 N.W.2d 452 (Minnesota Supreme Court 2005).

Nielsen v. State, supra.  

The court also explained that,

to be prejudicial, the evidence must be material. Pederson v. State, supra. Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Pederson v. State, supra. . . . Materiality is a mixed question of fact and law, which we review de novoPederson v. State, supra.

Nielsen v. State, supra. 

Finally, the Court of Appeals pointed out that Rule 9.04 ofthe Minnesota Rules of Criminal Procedure states that

in misdemeanor cases and upon request the state must `disclose any material or information within the prosecutor's possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.’ Although Minnesota courts have not discussed the scope of rule 9.04, its language is nearly identical with that of rule 9.01, which the supreme court has concluded imposes a narrower disclosure requirement than Brady

Nielsen v. State, supra. 

Here, the State of Minnesota argued that

the prosecutor was not required under Brady or the Minnesota Rules of Criminal Procedure to provide the e-mails because the information they contain is not exculpatory or impeaching. The state contends that the information in the e-mails is duplicative and would not have `significantly impaired [K.M.'s] credibility.’

But these arguments speak to the materiality of the evidence, not their favorability. We agree with the district court that the prosecutor should have disclosed the e-mails as potential impeachment evidence because they relate to an argument that K.M. was biased as a witness.

Nielsen v. State, supra. 

Nielsen claimed K.M.'s statements in the e-mails “were material because they `clearly establish a motive to fabricate or lie” and could have been used on cross-examination to `impeach [K.M.] with [K.M.'s] prior inconsistent statement.’” Nielsen v. State, supra.  The Court of Appeals, though, found that the “e-mails do not provide any information that was not already possessed by Nielsen, who was uniquely aware of K.M.'s potential interest in the outcome of the criminal case.” Nielsen v. State, supra. 

The court also explained that

most of the information in the e-mails summarizes the events of October 4 and is consistent with K.M.'s statements to the police and his testimony at trial. The other statements concern the civil case, of which Nielsen was clearly aware, and K.M.'s concern that an unfavorable outcome in that case could result in the loss of his professional licenses and other personal and financial hardship. This information was all available to Nielson prior to trial and undoubtedly factored into his decision to ask the district court to exclude all mention of the civil case in the criminal trial.

Nielsen argues that his request to exclude evidence of the civil claim is immaterial because `counsel did not possess the Brady material when the request was made.’ He argues that a `lawyer cannot make an informed tactical or strategic decision without being fully informed.’ But even without the information contained in the e-mails, Nielsen's knowledge, due to his decision to bring a lawsuit against K.M., was enough to allow him to make the strategic decision not to introduce evidence of that potential bias.

And even if disclosure of the e-mails had led Nielsen to introduce evidence of the civil case to impeach K.M.'s testimony, there is not a reasonable probability that the result of the jury trial would have been different. The civil case arose only after K.M.'s initial interview with the police and after Nielsen was charged with disorderly conduct. There is no indication that K.M.'s testimony deviated from his initial report in any way that would have had a material impact on the outcome of the case. And if K.M.'s testimony had deviated, Nielsen could have used that original statement for impeachment purposes.

Nielsen v. State, supra. 

Finally, Nielsen also cited

a number of cases, primarily from foreign jurisdictions, in support of the argument that suppressed evidence is material where it concerns the credibility of a sole or key witness. We agree that failure to disclose impeachment evidence may lead to a due-process violation, but it does not follow that evidence is material simply because a case turns on the testimony of a single witness.

Evidence is material only when `there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ Pederson v. State, supra.

Nielsen v. State, supra. 

The Court of Appeals found that the

cases that Nielsen relies on involved impeachment evidence that contradicted the witness's testimony or showed prosecutorial conduct that could have induced the witness to fabricate his testimony. See Giglio v. U.S., 405 U.S. 150 (1972)  (government failed to disclose promise not to prosecute a key witness in exchange for his testimony); Spicer v. Roxbury Corr. Inst., 194 F.3d 547 (U.S.Court of Appeals for the 4th Circuit 1999) (prior inconsistent statements were material where they directly contradicted the witness's testimony relating to the central issue before the jury); Crivins v. Roth, 172 F.3d 991, 998 (U.S. Court of Appeals for the 7th Circuit 1999) (evidence withheld concerned witness's past dishonesty with police and judicial officers).

Here, there is no suggestion that the prosecutor had any involvement in K.M.'s decision to testify and no indication that the so-called impeachment evidence would have contradicted any of his statements at trial concerning the October 4 incident. In the final analysis, the evidence was duplicative of information already known to Nielsen and to the district court.

Nielsen v. State, supra. 

The court therefore affirmed Nielsen’s conviction and sentence. Nielsen v. State, supra. 

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